IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 Crl.MC.No. 1025 of 2004 --------------------------------------- (IN CRIME NO.260/04 OF THRISSUR EAST POLICE STATION) PETITIONERS / 2ND ACCUSED ------------------------------------------------- ABDUL KHADER, S/O. ASSAINAR, VALIYAPARAMBIL HOUSE, KADUMGAMCHIRA DESOM, IRINJALAKKUDA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.SOJAN MICHEAL RESPONDENTS / COMPLAINANT --------------------------------------------------- THE STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. Addl.R2. LATHA BOBAN W/O BOBAN AGED 39 YEARS RESIDING AT AKKARAPATT HOUSE SHORNUR ROAD THRISSUR VILLAGE THRISSUR - 1 (Addl. respondent no.2 impleaded as per order dated 4-7-05 in M.A.13179/04) PUBLIC PROSECUTOR SRI.MOHAMMED PUZHAKKARA SRI.P.VIJAYA BHANU FOR ADDL.R2 SRI.D.ANIL KUMAR FOR ADDL.R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1025 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August 2009 ORDER Petitioner has been arraigned as accused along with one Kamalam Bhaskaran in a complaint filed by late Thankamma Thomas alleging commission of offences punishable under Sections 420, 423, 463, 467, 468 and 473 r/w Section 34 IPC. The said private complaint was referred to the police by the learned Magistrate for investigation under Section 156(3) of the Code of Criminal Procedure. Consequently, Annexure-I, First Information Report was registered as Crime No.260/04 by Thrissur East Police Station against the petitioner arraigning the petitioner as accused No.2 and Kamalam Bhaskaran as accused No.1. Annexure-II is stated to be the complaint preferred by Thankamma Thomas through her power of attorney holder Sri.Peter C John (Additional respondent No.2 who is stated to be the daughter of Smt.Thankamma Thomas has been subsequently impleaded in this case). 2. The case of the complainant as is discernible from Annexure I is that the complainant had purchased a plot of land having an extent of 41 cents situated in Survey No.757/P of Chembukavu Village from one Antony, S/o Thomas, Karingada on the strength of a registered document Crl.M.C.No.1025 OF 2004 :: 2 :: bearing No.4938/99 on August 31, 1999. The said property, according to the complainant, was purchased by her on the strength of four registered documents of the year 1999 from Edassery Manackal Krishnan Namboothiry and others. The allegation in the complaint is that in July 2001, accused No.1 had got the said property registered in his name at the Thrissur Sub Treasury office under an assignment deed bearing No.4250/2001 by impersonating himself as Edassery Manackal Narayanan Namboothiry, S/o Krishnan Namboothiry. It is further averred in the complaint that the police had registered crime No.860/01 in this connection against accused No.1. The further allegation in the complaint is that on the strength of the above mentioned fabricated forged document (document No.4250/01) accused No.1 in connivance with accused no.2 (petitioner herein) and the Sub Registrar had got registered yet another document bearing No.1885/04 at Thrissur Sub Registry on March 19, 2004. Thus the petitioner had committed the offences aforementioned in furtherance of the common object along with accused No.1. 3. A perusal of annexure I complaint will show that the only specific allegation against the petitioner is that he had got a document registered in his name in respect of the property which is allegedly in the possession and enjoyment of the complainant in connivance with accused no.1. It may be noticed that petitioner had purchased the property in question, on the Crl.M.C.No.1025 OF 2004 :: 3 :: strength of the registered document bearing No.1885/04 registered at Thrissur Sub Registry on March 19, 2004 for a total consideration of Rs.47,97,500/-. Obviously, and as is tacitly admitted by the complainant herself, the petitioner had purchased the said property from accused No.1 who had got the said property assigned in his favour in the year 2001 by virtue of document No.4250/01. It is true that a case is allegedly pending against accused No.1 in crime No.860/01 registered by the police at the instance of the complainant. Apparently the assignment in favour of the petitioner is three years after the purchase made by accused No.1 in his favour in the year 2001. 4. There is considerable force in the contention raised by learned counsel for the petitioner that by no stretch of imagination the petitioner can be held to be privy to any criminal offence much less the various offences mentioned in the complaint. Petitioner had purchased the said property under the bonafide belief and impression that it belonged to accused no.1. He had made the purchase after verifying the records and having been satisfied that document No.4250/01 which stood in the name of accused No.1 related to a bonafide transaction. Petitioner had also paid property tax in respect of the said property and he has been keeping possession of the same after paying the tax in his name (annexure IV). Crl.M.C.No.1025 OF 2004 :: 4 :: 5. There is yet another aspect of the matter. It is the admitted position that the complainant has instituted a civil suit against the petitioner and the co-accused apart from two others who were stated to be the witnesses to the document in question before the Subordinate Judge's Court, Thrissur. The complaint was filed before the police on the next day viz. April 1, 2004. Annexure-III is the true copy of the plaint in the above civil suit filed by the complainant. A perusal of the averments in the plaint will show that the very same averments as are incorporated in the complaint are reiterated in the plaint also. The prayer in the suit is to pass a decree of declaration that the two sale deeds namely, 4250/01 in favour of accused No.1 and sale deed No.1885/04 in favour of accused No.2 (petitioner herein) are null, void and fabricated. It is not necessary to refer to the other incidental and ancillary reliefs prayed for in the suit. 6. Annexure-IV, revenue receipt evidencing payment of revenue after purchase of the property and also annexure V, the encumbrance certificate issued by the Department of Registration in respect of the said property obtained by the petitioner at the time of purchase made by him will prima facie substantiate the case of the petitioner that he is a bonafide purchaser. In any view of the matter, the fact that petitioner had purchased the said property from accused No.1 spending a huge sum to the tune of about 48 lakhs will show that the prosecution launched against Crl.M.C.No.1025 OF 2004 :: 5 :: him alleging commission of the various offences mentioned above is not warranted at all. 7. Significantly, the complainant had instituted a suit against the petitioner on the next day after filing the complaint before the police. The validity of the registered document in the name of accused No.1 is the subject matter of the suit and obviously the civil court is in seisin of the matter. Annexure VI, report and plan prepared by the Advocate Commissioner in the above suit, will further show that there appears to be some disputes with regard to the identity of the property as well. 8. Having regard to the entire facts and circumstances of the case and having heard learned counsel for the parties, I am satisfied that the proceedings pending against the petitioner cannot be justified. 9. In Inder Mohan Goswami and another vs. State of Uttaranchal and Ors. (AIR 2008 SC 251) it has been held that the inherent powers under Section 482 of the Code can be exercised to prevent abuse of process of court. In the above case also the facts are almost identical. A civil suit was instituted in respect of the subject matter in that case also. Their lordships held that since the veracity of the facts alleged by the authorities can only be ascertained on the basis of evidence to be adduced by the parties before the civil court, it would not be just or proper to proceed against the accused before the criminal court. Crl.M.C.No.1025 OF 2004 :: 6 :: Therefore, the apex court had quashed the proceedings launched against the accused in that case. Having carefully perused the entire materials available on record, I am satisfied that the proceedings now pending against the petitioner in Crime No.260/04 of Thrissur East Police Station are liable to be quashed. I do so. Crl.M.C. is allowed. However, it is made clear that this order will have no bearing on the civil suit referred to above. (A.K.BASHEER, JUDGE) jes