IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 Crl.MC.No. 4688 of 2008() ----------------------------------- CRIME NO298/2008 OF THE ALAKODE POLICE STATION ............... PETITIONER(S): ACCUSED ---------------------- PETTAYIL SUNNY, AGED 46 YEARS, S/O.JOSEPH, VELLAM AMSOM NADUVIL DESOM, THALIPARAMBA TALUK, VAYATTUPARAMBU, KANNUR. BY ADV. SRI.SUNIL NAIR PALAKKAT RESPONDENT(S): STATE & DEFACTO COMPLAINANT ------------------------------------------ 1. THE STATE OF KERALA, REP.BY THE SUB- INSPECTOR OF POLICE, ALAKODE POLICE STATION. (THROUGH PUBLIC PROSECUTOR OF HONOURABLE KERALA HIGH COURT, ERNAKULAM) 2. VADAKKUMKARA ABRAHAM, S/O.XAVIOUR, ALAKODE AMSOM ARANGOM DESOM, THALIPARAMBA TALUK, KANNUR. PUBLIC PROSECUTOR MR.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- CRL.M.C.No. 4688 OF 2008 --------------------------------- Dated this the 18th day of February, 2009 O R D E R This petition is filed with a prayer to quash Annexure A1 F.I.R 298/08 of the Alakode Police Station. The complaint is filed on the ground that the accused in the case had transferred the property in favour of the defacto complainant for a valid consideration and when the defacto complainant approached the authorities for payment of tax and change of mutation it was informed that there is already an attachment over the property for the dues of a bank and therefore neither tax can be collected nor mutation be affected. It is suppressing the material facts and a sale deed has been executed with the fraudulent intention to cheat by deceitful means and therefore the accused has committed the offences under Section 420, 426 and 447 of the IPC. The present prayer is to quash that complaint on the ground that the defacto complainant had suppressed material factors before the court. It is true that an assignment has been executed by the accused in favour of the defacto complainant. But even at the time of the execution of the document there was an Crl.M.C.No. 4688/2008 -2- understanding between the parties to the effect that when the accused returns a sum of Rs. 2,30,000/- within a period of six months the defacto complainant is bound to reconvey the property to the defacto complainant. Annexure A3 is the said agreement. For enforcing the terms of the agreement the accused in this case had filed a suit for enforcement of the agreement whereby directing the present defacto complainant to execute the document in favour of him. So a reading of the Ext. A3 agreement with the plaint would reveal that though a registered assignment deed was executed in favour of the defacto complainant there was a perfect understanding that it has to be reconveyed to the assignor on repayment of Rs. 2,30,000/- after a period of six months. So it may be a case where it is a sale with the right to repurchase and therefore the object or intention behind the execution of the document was to get some money and repayment to reassign of the property. So it may be only a temporary assignment whereby the person who advances the money will be entitled to enjoy the property which can be withdrawn after the amount is paid and a fresh document is executed in favour of the transferrer. So one cannot positively Crl.M.C.No. 4688/2008 -3- hold that there is a fraudulent or deceitful mind in order to cheat a person to get the property of another without revealing the entire facts. In the complaint also the defacto complainant had totally suppressed about the execution of the agreement to reconvey which goes to the root of the case which made the learned Magistrate to take cognizance the matter and proceed with. Since I am convinced that the whole transaction is a sale with a condition for repurchase, the real intention to convey absolute title over the property does not exist and therefore it cannot be said that the accused has committed the offences as alleged. The fundamental ingredients necessary to constitute the offences are lacking from the materials available and therefore I quash the complaint. In the result, Crl.M.C is allowed and F.I.R. 298/2008 of the Alakode Police Station is quashed. M.N. KRISHNAN,JUDGE vkm