IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.Rev.Pet.No. 3486 of 2008() ------------------------------ Crl.M.P.2536 IN CC.890/2008 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): ACCUSED -------------------------------------- BEJOY VARGHESE, AGED 57, S/O.LATE CAPT.P.K.VARGHESE, PUTHENPURACKAL HOUSE, SHENOYS ROAD, KALOOR, KOCHI-17. BY ADV. SRI.K.G.SARATHKUMAR SRI.S.RAJKUMAR RESPONDENT(S): COMPLAINANT ------------------------------------ 1. E.M.PURUSHOTHAMAN, AGED 66, S/O.MANI, ANUGRAHA, VYTTILA DESOM, POONITHURA VILLAGE, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3486 OF 2008 =========================== Dated this the 4th day of November,2008 ORDER This petition is filed under section 397 and 401 of Code of Criminal Procedure challenging the order passed by the Judicial First Class Magistrate, Kochi dismissing M.P.2536/2008 in C.C.890/2008 an application filed for discharge under section 245(2) of the Code of Criminal Procedure. Petitioner originally filed Crl.M.C.4016/2008 challenging the order. Finding that the remedy is not to challenge the order under section 482 of Code of Criminal Procedure but to prefer a revision petitioner filed an application to convert the Crl.M.C into Criminal Revision Petition, which was allowed. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that the dispute is purely a civil dispute based on the CRRP 3486/2008 2 non-performance of an agreement for sale and the learned Magistrate should not have taken cognizance of the offence and on the materials learned Magistrate should have discharged the petitioner under section 245(2) of the Code of Criminal Procedure. It was argued that the agreement for sale executed by the revision petitioner does not show that he had disclosed to the first respondent complainant that he is in possession of the title deeds and therefore no intention to cheat should have been inferred and therefore learned Magistrate was not justified in dismissing the petition. 4. On hearing the learned counsel and going through the order passed by the learned Magistrate in M.P.2536/2008, I do not find any illegality or irregularity warranting interference. Learned counsel has no case that ingredients of an offence under section 420 of IPC is not made out in the complaint. The argument of the learned counsel is only that learned Magistrate should not have CRRP 3486/2008 3 accepted the allegations in the complaint when the agreement does not disclose that petitioner had claimed that he is in possession of the original title deed. When a person enters into an agreement to sell the property and promises to execute the sale deed after receiving the balance consideration, unless it is mentioned that the title deed is not with him, it is to be presumed that the title deed is with him. Therefore even in the absence of a positive statement in the agreement that he is in possession of the title deed, I cannot agree with the submission of the learned counsel that the ingredients of an offence under section420 is not made out. There is no reason to interfere with the order. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006