IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 Crl.MC.No. 2569 of 2009 ---------------------------------- CC.NO.735/2008 OF JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG, KASARAGOD. .................... PETITIONER/ACCUSED NO.1: ------------------------------------------ MOULANA ABDUL KHADER, H.NO.987/B, AL-QUADIRA MANZIL, KUZHINNADI, CHERUVATHOOR POST, KASARAGODE DISTRICT. BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. RESPONDENTS/STATE AND COMPLAINANT: ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. 2. M.B.YOUSUF, S/O.BADAVAN KUNHI HAJI, FASHIDA MANZIL, BANDYOD, MANGALPADY POST, KASARGODE DISTRICT. 3. P.B.ABDUL RAZAK, S/O.BEERAN MOIDEEN HAJI, TAJ NAGAR, ALAMPADY, KASARAGODE. R1 PUBLIC PROSECUTOR MR. P.A. SALIM, R2 BY ADVS.MR.T.M.SREEDHARAN, MR.A.DINESH RAO. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/01/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2569 OF 2009 =========================== Dated this the 12th day of January,2010 ORDER The first accused in C.C.735/2008 on the file of Judicial First Class Magistrate Court- I,I, Hosdurg filed this petition to quash the cognizance taken by the learned Magistrate on Annexure III final report submitted on completing the investigation aftr Annexure I complaint filed by second respondent was sent for investigation under section 156(3) of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner and the second respondent were heard. 3. Second respondent filed Annexure I complaint before Judicial First Class Magistrate, Hosdurg alleging that petitioner sold the property having 6820 sq.ft of land Crl.M.C.2569/2009 2 including the building in Ward No.8 of Hassan in Karnataka State under Annexure IV sale deed dated 20.9.2004 for a consideration of Rs.65 lakhs, through the second accused power of attorney holder and later by Annexure IV registered sale deed dated 1.3.2005 petitioner with a dishonest intention to cheat the second respondent sold the very same property to M/s.Gopadi Corporation represented by the partner G.R. Praveen for a total consideration of Rs.25 lakhs and thereby committed the offences under sections 417, 418 and 420 read with section 34 of Indian Penal code. The argument of the learned counsel appearing for the petitioner is that ingredients of the offences are not attracted and hence continuation of the proceedings is only an abuse of process of the court and the dispute between the parties is only a civil dispute and therefore it is to be quashed. 4. Learned counsel appearing for the second respondent argued that Annexure I complaint Crl.M.C.2569/2009 3 discloses ingredients of the offences and when petitioner executed a power of attorney in favour of the second accused authorizing him to transfer the property belonging to the petitioner and subsequently by Annexure IV sale deed the property was sold for a consideration of rupees sixty five lakhs to the second respondent, petitioner is not entitled to transfer the same property thereafter to any other person and by transferring the property, under Annexure VII sale deed, it is clear that there was a dishonest intention on the part of the petitioner to cheat the second respondent and therefore ingredients of the offence is attracted. Learned counsel also argued that even if technically it is stated that as the second sale effected by the petitioner is vitiated, it cannot be disputed that there was an intention to cheat second respondent and the second transfer was only created in collusion with the assignee thereunder and as cognizance of the offence is taken not the Crl.M.C.2569/2009 4 offender, learned Magistrate can under section 319 of Code of Criminal Procedure proceed against the second accused also and therefore there is no justification to quash the proceedings. Learned counsel argued that by executing Annexure VII sale deed, it is clear that there is a collusion between the petitioner and the assignee under Annexure VII and therefore the cognizance taken cannot be quashed. Relying on the decision of the Apex Court in M.Krishnan v. Vijay Singh and another (2001) 8 SCC 645), it is argued that the availability of civil remedy by itself is not a ground to quash the proceedings. Reliance was also placed in Alpic Finance Ltd v. P.Sadasivan and another (2001) 3 SCC 513) in support of the submission. 5. Prosecution case is not that with a dishonest intention to cheat second respondent petitioner through the second accused induced second respondent to purchase the property covered by Annexure IV sale deed and second respondent was Crl.M.C.2569/2009 5 thus induced to part with the consideration of Rs.65 lakhs and the petitioner thereby committed an offence under section 417, 418 or 420 of Indian Penal Code. On the other hand, the only allegation in the complaint as well as in the final report is that after transferring the property belonging to the petitioner through the second accused power of attorney holder, petitioner with the dishonest intention to cheat the second respondent, he executed Annexure VII sale deed and therefore offences under sections 417, 418 and 420 read with section 34 of Indian Penal Code were committed. 6. Annexure V is the power of attorney executed by the petitioner in favour of the second accused on 20.4.2000 authorising the second accused to sell or exchange the property sold under Annexure IV sale deed. It is by virtue of the power obtained under Annexure V, Annexure IV sale deed was executed by the second accused in favour of the second respondent. Second respondent and Crl.M.C.2569/2009 6 the prosecution has no case that by Annexure IV sale deed second respondent did not obtain the right, title and interest of property obtained under Annexure IV sale deed. There is also no case that when Annexure IV sale deed was executed there was any dishonest intention to cheat the second respondent either for the petitioner or his power of attorney holder the second accused. There is also no case that with the dishonest intention to cheat, there was any inducement before Annexure IV sale deed was executed. Hence there is no case of a dishonest intention at the inception. If by Annexure IV title deed the owner of the property has already transferred the property, the owner will not have any subsisting right or title to the property to be transferred subsequent to Annexure IV sale deed. Therefore even if another sale deed was executed by the petitioner thereafter either directly or through the power of attorney holder, the assignee thereunder may not get any right or Crl.M.C.2569/2009 7 title to the property, which was transferred earlier. Therefore it cannot be said that by executing Annexure VII sale deed, petitioner cheated the second respondent. 7. The question whether in view of Annexure IV sale deed the transferee under Annexure VII sale deed would get any right or title to the property is not a matter to be decided either in this petition or by the learned Magistrate in the proceedings. It is for the civil court to decide in appropriate proceedings. So long as there is no case for the second respondent or the prosecution that second respondent was induced by either the petitioner or the second accused with a dishonest intention to cheat, to part with the consideration shown in Annexure IV sale deed, it cannot be said that an offence under sections 417 or 418 or 420 is attracted. When the property has been validly transferred under Annexure IV sale deed, as is the case of the second respondent, by executing Crl.M.C.2569/2009 8 Annexure VII sale deed it cannot be said that petitioner had cheated the second respondent. When there is no case either in the complaint or in the final report that there was a dishonest intention on the part of the petitioner to cheat the second respondent when Annexure IV sale deed was executed, they cannot be prosecuted for the offences under section 417, 418 and 420 of Indian Penal Code is attracted. Therefore continuation of the proceedings, taken cognizance by the learned Magistrate on Annexure III final report, is only an abuse of process of the court and can only be quashed. Petition is allowed. C.C.735/2008on the file of Judicial First Class Magistrate Court, Hosdurg, Kasaragod is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006