IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 Crl.MC.No. 3869 of 2005() ------------------------- CC.263/2003 of THE JFCM COURT, KOTHAMANGALAM) .................... PETITIONER: ------------ E.K.LILLY, AGED 50 YEARS, W/O.N.MOHANAN, ILLIKKATT HOUSE, I.O.C. PUMP., KOONAMTHAI, EDAPPALLY, KOCHI-682 024. BY ADV. SRI.BEPIN VIJAYAN RESPONDENTS: COMPLAINANT ------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THOMAS, AGED 50 YEARS, S/O.JOHN, ATTUKUZHIYIL, KARINGAZHAKARAYIL, KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI SALIM P.A. BY ADV. SRI.T.V.GEORGE FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.14113/2005 IN CRL.M.C. NO.3869/2005 DISMISSED. 29-8-2008 SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C. No.3869 of 2005 ---------------------------------------------- Dated, 29th August, 2008. ORDER This application is filed by the 4th accused in C.C.No.263/2003 on the file of the Judicial First Class Magistrate's Court, Kothamangalam with a prayer to quash Annexure 4 complaint and C.C.No.263/2003 instituted thereon. 2. The case of the petitioner can be summarised as follows: The 2nd respondent herein preferred a protest complaint before the Judicial First Class Magistrate's Court, Muvattupuzha against 5 persons including the petitioner herein. Civil transaction entered into between the 2nd respondent and the mother of the petitioner herein led to the registration of crime in the Kottappady police station. The facts which led to the registration of the crime is that the father of the petitioner owned certain immovable properties having an extent of 1 acre 52 cents in Survey CRMC3869/05 -:2:- Nos.250/1D/1, 250/1E/1, 227/2A and 228/2/1/4 of Kottappady village, and after his death, the property devolved upon the widow and the children including the petitioner. The petitioner and other two sisters, namely, Chinnamma and Vilasini executed a power of attorney registered as Document No.68/1983 of Sreemoola Nagaram S.R.O. in favour of their mother Karthiyani to sell their respective rights in the property inherited from their father. On the strength of the above power of attorney, the mother of the petitioner executed documents Nos. 4620/1985 and 4628/1985 dated 9-9-1986 of Kothamangalam S.R.O., in favour of the 2nd respondent/complainant. Those documents are produced along with this Crl.M.C. as Annexure A1 and A2. According to the petitioner, she was not present in the Sub Registry nor did she participate directly in the execution of the sale deed. It is seen that the 2nd respondent was put in possession of the property and has been in possession and enjoyment of the same and the 2nd respondent has got mutation of registry in his name and has been paying basic tax. However, one of the sisters of the petitioner, namely, CRMC3869/05 -:3:- Krishnakumari who was in the U.S.A. filed a suit as O.S.163/94 for partition based upon which a crime was registered but the police referred the same as civil dispute. Aggrieved by the above acts of the police, the 2nd respondent herein filed a protest complaint upon which the court took cognizance and instituted C.C.No.1285/97 in the JFCM Court-I, Muvattupuzha. Challenging the above criminal proceedings, the petitioner herein and another sister of the petitioner approached this Court by filing Crl.M.C.2149/98. By order dated 12-7-2001, this Court dismissed the above petition and the above decision of this Court has been reported in 2001 (2) KLT 887. A copy of the above decision is produced in this petition along with this petition as Annexure V. After the disposal of the above petition by this Court, the case was taken for consideration in the Judicila First Class Magistrate Court-I, Muvattupuzha and witnesses were examined before the framing of the charge. Annexure 6 is the deposition of PW-1, 2nd respondent herein, who was thus examined in the court below. It is stated that C.C. 1285/97 was transferred from JFCM-I Muvattupuzha to JFCM, CRMC3869/05 -:4:- Kothamangalam and the case is renumbered as C.C.263/2003 and the same is pending for consideration. On going through Annexure 6 it can be seen that the witness was examined and cross examined for all the accused. Subsequently 2nd accused and Accused No.4, the petitioner herein, preferred Annexure 8 petition before the JFCM, Kothamangalam under section 245 Cr.P.C. The grievance of the petitioner is that she is not discharged as payed for and according to her, no materials available to frame a charge against her and therefore, the continuation of the proceedings against her will amount to abuse of process of court and therefore prayed to quash Annexure 4 protest complaint and the case instituted thereon which is now pending as C.C 263/2003 before the court below. 3. I have heard the counsel for the petitioner and also the counsel for 2nd respondent and the learned Public Prosecutor. 4. From the facts given above it can be seen that the court below has conducted a preliminary enquiry and the matter is stand posted for framing charge. The main allegation raised by the petitioner is that there are no materials to frame formal CRMC3869/05 -:5:- charge against the petitioner even after examination of PW-1 and therefore, the court below ought to have discharged the accused. It is stated in the Crl.M.C. that the learned Magistrate is of the opinion that his predecessor has recorded the evidence and posted the matter for framing of charge and therefore, this Court is not inclined to allow the petition filed by the petitioner herein. 5. I have perused all the materials available on record and also considered the rival contentions advanced by the counsel for both sides. As evidenced by Annexure 5 decision, this Court has already considered the facts and circumstances involved in the case and also the legal question involved in the matter. Since the petitioner failed to establish the case to quash the complaint, this Court dismissed the earlier petitions and directed the petitioners to face the trial and towards trial, PW-1 was examined and evidence was recorded and the learned Magistrate who recorded evidence of PW-1 was of the opinion that the formal charge has to be framed since the complainant 's evidence was sufficient to proceed further. It is CRMC3869/05 -:6:- also relevant to note at this juncture that though PW.1 was cross examined extensively for and on behalf of all the accused, nothing was elicited against the prosecution and it was in this circumstance the learned Magistrate has decided to post the case for framing charge. It is also relevant to note that the Magistrate who recorded the evidence has not framed the charge and before that stage of the case, he was transferred and in that place another presiding officer took charge and it is for him to frame charge based upon available materials on record. The petitioner is free to raise all her contentions before the court below at the time of hearing or framing of charge and it is for the trial court to decide whether the accused be discharged or to proceed further on framing charge. 6. In the light of the above facts and circumstances, I am of the view that the Crl.M.C. can be disposed of directing the court below to proceed further from the stage at which the proceedings was stopped due to stay of this Court and during the framing of the charge, the petitioner is free to raise all her contentions and plea before the court. CRMC3869/05 -:7:- 7. Thus the court below is directed to hear the petitioner on framing of charge and further proceed with the case depends upon the outcome of the hearing, if the charge is not already framed otherwise proceed with the trial of the case from the stage it was stopped and dispose of the same in accordance with law. V.K.MOHANAN, JUDGE kvm/- CRMC3869/05 -:8:- V.K.MOHANAN, J. No.... Judgment/Order Dated: