IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 Crl.MC.No. 3706 of 2011() ------------------------- CC.860/2010 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... PETITIONER(S): ACCUSED 1 AND 2 ------------------------------ 1. SHINO DAVID, S/O DAVID, KOTTAPARAMBIL, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE, CHERTHALA. 2. SHELTON DAVID, S/O DAVID, KOTTAPARAMBIL, SOUTH MURI, CHERTHALA SOUTH VILLAGE, CHERTHALA. BY ADV. SRI.JOBY CYRIAC RESPONDENT(S): DE-FACTO COMPLAINANT &STATE. ------------------------------------------- 1. SRI.SATHEESH,S/O GOPALAKSHISHNAN NAIR, PADAMAVEETTIL, MEPPARAMBATH, PANNIYAMKARA, KOZHIKKODE DISTRICT, REP. BY HIS POWER OF ATTORNEY HOLDER, SRI.THOMAS JOSEPH @ REJI,S/O JOSEPH KOSHY, KEMAN VILLA, CHERTHALA VADAKKE VILLAGE, CHERTHALA VADAKKE MURI, CHERTHALA-688 532. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R1 BY ADV. SRI.K.K.JOHN R2 BY PUBLIC PROSECUTOR SMT. JASMINE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3706 of 2011() APPENDIX PETITIONERS ANNEXURES A1: COPY OF THE FINAL REPORT DATED 23.12.2009 IN C.C.NO:860/2010 ON THE FILE OF J.F.M.C.-1 CHERTHALA A1(A) COPY OF THE COMPLAINT AS C.M.P.1641/09 DATED 13.3.2009 FILED UNDER SEC.156(3) OF CR.P.C. A2: COPY OF THE JUDGMENT IN O.S. 367/2006 A3: COPY OF THE PLAINT IN O.S.NO:15/2011 RESPONDENTS ANNEXURES NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 3706 OF 2011 (E) ------------------------------------------ Dated this the 16th day of December, 2011 O R D E R Petitioners are accused nos. 1 and 2 in C.C. No:860/2010 of Judicial First Class Magistrate Court-1, Cherthala. The 1st respondent, who was represented by his Power of Attorney holder, filed a complaint which was forwarded to the Police under section 156(3) of Cr.P.C. After conducting the investigation, charge sheet was laid against the accused alleging offence under section 420 r/w 34 IPC. 2. The gist of the case is that the petitioners, who are the owners of the building by name 'Vimala Restaurant', leased out the same to the complainant for a period of 5 years by receiving an amount of `.7,00,000/- from the complainant as security. But the petitioners suppressed the Crl. M.C. No: 3706 OF 2011 (E ) -2- fact that the said building had been mortgaged to the Kerala Financial Corporation. Since the petitioners defaulted payment of the loan installments the KFC took over physical possession of the building on 23.12.2008 and thus the defacto complainant could not run his hotel business and accordingly, it had to be stopped. According to the complainant he had sustained a loss of `.15,00,000/-. 3. The learned counsel for the petitioners would submit that the fact that the hotel building had been subject to a mortgage with KFC was not mentioned in the document evidencing lease/license. According to the petitioners it was not a lease but only a license. The learned counsel for the complainant would submit that had he been told that the building was subject to mortgage then he would not have parted with a sum of `.7,00,000/- to the petitioners as security. The learned counsel further submits that the dishonest conceivement of facts is deception attracting the Crl. M.C. No: 3706 OF 2011 (E ) -3- offence of cheating as explained in Section 415 of IPC. It is also contended that they were well aware of the fact that the property was subject to mortgage, but conveniently that fact was suppressed by the petitioner evidently to get a huge sum of `.7,00,000/- as security and so the contention that the petitioner had no dishonest intention at the time of receiving that much huge amount from the complainant to cheat the complainant cannot be accepted at all. 4. The learned counsel for the petitioner would submit that though as per the agreement complainant was to pay premium/license fee/rent, he did not pay the amount and accordingly petitioner had to file O.S. No:367/2006 for `.95,500/- towards arrears of premium/rent. 5. It is also pointed out that the Civil court has found in O.S. No.367/2006 that transaction was only a license Crl. M.C. No: 3706 OF 2011 (E ) -4- and not lease. If so, according to the petitioner, it was easy for them to revoke the license and take over physical possession of the hotel immediately. But that was not done by the petitioner. Thus, according to the petitioners, the contention that the money was received by the petitioners from the defacto complainant by concealment of facts cannot be accepted. 6. The learned counsel would submit that a reading of the complaint, Annexure 3, would show that the dispute was only civil in nature and as such the criminal prosecution is liable to be quashed. The fact that `.7,00,000/- was received by the petitioners at the time of entrustment was not disputed. The contention with regard to the same was raised in Annexure A2 suit also. The rent/license fee in arrears was only `.95,000/-. The contention raised by the petitioner/accused that license could have been revoked by the accused is also no reason to say that there was no Crl. M.C. No: 3706 OF 2011 (E ) -5- dishonest intention, since, even in that case, the accused may have to pay `.7,00,000/- to the complainant, the learned counsel for the complainant argued. 7. The learned counsel for the defacto complainant would submit that such a huge sum of `.7,00,000/- could not have been paid by the complainant to the petitioners, had he been not made to believe that he could continue in possession of the hotel building and run the same for five years. There is weight in the contention raised by the complainant. According to the complainant, if the property was subject to a mortgage, the complainant would not have parted with such a huge amount. As such the contention that it is purely civil in nature and so the prosecution is liable to be quashed under section 482 of Cr.P.C., cannot be sustained. 8. The petitioners are at liberty to raise all such contentions before the trial Court. They are also at liberty Crl. M.C. No: 3706 OF 2011 (E ) -6- to file a petition for discharge, if charge has not been already framed. It is submitted by the learned counsel for the accused that they may be permitted to be represented by their counsel under section 205 of Cr.P.C. The petitioners can file a petition under section 205 Cr.P.C. before the Court below. The learned magistrate will dispose of that application, in accordance with law, after hearing the counsel for the complainant as well. This petition is disposed of accordingly. N.K. BALAKRISHNAN, JUDGE jjj