IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 Crl.MC.No. 4167 of 2008() ----------------------------------- CC.316/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... PETITIONER/ACCUSED NO.2 TO 6 :- -------------------------------------------------- 1. PARAMESWARAN, S/O. NARAYANAN NADAR, SIVASARAS, T.C. 10/2161, KANJIRAMPARA, PANGODU VILLAGE, THIRUVANATHAPURAM. 2. SUGATHAN, PANDARAVILAKATHU VEEDU, AYIRAKONAM KPRA A 159, PANGODU VILLAGE, THIRUVANATHAPURAM. 3. SIVAKUMAR @ KUMAR, CHARUVILAKATHU VEEDU, TC. 10/2174,PANGODU WARD, KANJIRAMPARA VILLAGE, THIRUVANANTHAPURAM. 4. PRABHAKARAN, T.C. 7/92 KPRA A 431, PANGODU WARD, KANJIRAMPARA VILLAGE, THIRUVANANTHAPURAM. 5. SREEKUMAR, SON OF RAMAKRISHNA NADAR, VAZHAVILA VEEDU, KANJIRAMPARA WARD KPRA B 451, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. MR.JOHNSON GOMEZ RESPONDENTS/STATE & COMPLAINANT: ---------------------------------------------------------- *1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM THROUGH THE SUB INSPECTOR OF POLICE, VATTIYOORKAVU POLICE STATION, * 2. CHANDRASEKHARAN, S/O. BENATHICOSE NADAR T.C. 10/2161, SIVA SARAS, KANJIRAMPARA P.O., THIRUVANANTHAPURAM. Crl.MC.No. 4167 of 2008 *NAME AND ADDRESS OF THE RESPONDENTS CORRECTED AS 1. SREEKALA DEVI, DAUGHTER OF OMANAMMA, RESIDING AT KACHANI, ARUVAKODE, KONATH, PUTHENVEETIL, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM THROUGH THE SUB INSPECTOR OF POLICE, VATTIYOORKAVU POLICE STATION. *AS PER ORDER DATED 12/11/2008 IN CRL.MA.NO.6336/2008. R2 BY PUBLIC PROSECUTOR MR.AMJAD ALI R1 BY ADV. SMT.SANGEETHA LAKSHMANA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 4167 OF 2008 ------------------------------------------ Dated 29th September 2009 O R D E R Petitioners are accused 2 to 6 in C.C.316/2005 on the file of Judicial First Class Magistrate-II, Nedumangadu. First respondent is the de facto complainant. First accused had earlier approached this court to quash the final report and the cognizance taken by this court in C.C.316/2005 contending that it is only an abuse of process of court. By Annexure-A3 judgment in Crl.M.C.3578/2005, this court already quashed the case as against first accused finding that the complaint is a frivolous one and the learned Magistrate should not have taken cognizance on the protest complaint. This petition is filed under Section 482 of Code of Criminal Procedure by the remaining accused to quash the proceeding as against them also. 2. Learned counsel appearing for petitioners, first respondent and learned Public Prosecutor were heard. CRMC 4167/08 2 3. Learned counsel appearing for first respondent submitted that though under Annexure-A3 order this court quashed the case as against first accused, it is only for the reason that no overt act as against him was alleged, which is not the case against petitioners and Annexure-A1 protest complaint filed by first respondent establish that overt acts are specifically alleged against the petitioners and offences under Sections 452, 323, 354 and 294(B) read with Section 34 of Indian Penal Code are attracted and therefore, learned Magistrate was justified in taking cognizance of the offences as against petitioners and it cannot be quashed. 4. Learned counsel appearing for petitioners pointed out that Annexure-A3 order has become final and it is already found by this court that the entire protest complaint is vexatious and frivolous and the learned Magistrate should not have taken cognizance on the same and in such circumstances, the proceedings as against the petitioners can only be quashed. 5. As is clear from Annexure-A3 order of this court, entire factual matrix of the case was CRMC 4167/08 3 analysed in detail and it is found that civil and criminal cases are pending between the accused and first respondent. A suit for specific performance of the agreement for sale was instituted by the first accused contending that husband of the first respondent had agreed to sell the property in favour of first accused. First respondent instituted O.S.1625/2003 contending that she had half right in the property. With regard to the incident that occurred on 24/6/2003, first accused had lodged a complaint alleging that the husband of the first respondent trespassed into the shop room on 24/6/2003 by breaking open the lock and caused damages. The complaint was sent for investigation under Section 156(3) and a final report was filed which was taken cognizance by the learned Magistrate as C.C.242/2004. So also, first accused filed another complaint alleging that first respondent and her husband committed offences under Sections 415, 420, 423 and 120(B) of Indian Penal Code which was also sent for investigation under Section 156(3) of Code of Criminal Procedure. After investigation a final report was filed which was taken cognizance as C.C.121/2004. It CRMC 4167/08 4 is thereafter, first respondent filed a complaint which was sent for investigation under Section 156(3) of Code of Criminal Procedure and after investigation police filed a refer report and thereafter first respondent filed Annexure-A2 protest complaint which was taken cognizance by the learned Magistrate. 6. Though learned counsel appearing for first respondent vehemently argued that findings in Annexure-A3 will not affect the case as against petitioners herein when the complaint discloses overt acts committed by them, in the light findings in Annexure-A3 order, I cannot agree. This court after analysing the facts found that after the alleged incident on 24/6/2003, first respondent lodged the complaint which was sent for investigation only after ten months and that too after the police has registered the case on the complaint filed by the first accused and no plausible or satisfactory explanation was offered for the delay. This court therefore entered into a factual finding that “the protest complaint is filed on experimental basis and it assumed frivolous and vexatious nature”. That finding cannot be ignored by the first respondent and CRMC 4167/08 5 is binding on her. In such circumstances, the proceedings as against petitioners cannot be allowed to continue as it is a frivolous and vexatious complaint. Petition is allowed. C.C.316/2005 on the file of Judicial First Class Magistrate-II, Nedumangadu as against petitioners, accused 2 to 6 is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj. CRMC 4167/08 6 M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.A.NO.4097 OF 2009 in CRL.M.C.NO.4167 OF 2008 ------------------------------------------ Dated 29th July 2009 O R D E R This petition is filed to re-call the judgment and re-open the case contending that first respondent, defacto complainant received the notice to appear on 7/7/2009 and hence the order passed on 22/6/2009 before serving notice is to be re-called. 2. Learned counsel appearing for petitioners and respondents 1 to 5 were heard. 3. As is clear from Annexure-I notice received by the petitioner, she was directed to appear before the court only on 7/7/2009 or thereafter. A notice should should not have issued from this court directing a party to appear a day or thereafter. Whatever it be, as the order in Crl.M.C.4167/2008 was passed before the date of CRMC 4167/08 7 appearance as per notice served, the order is re-called. Post the case for hearing on 19/8/2009. Crl.M.A.6115/2008 Order of stay originally granted is extended until further orders. M.SASIDHARAN NAMBIAR, JUDGE. uj. CRMC 4167/08 8 M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.4167 OF 2008 ------------------------------------------ Dated 22nd June 2009 O R D E R Petitioners are accused 2 to 6 in C.C.316/2005 on the file of Judicial First Class Magistrate-II, Nedumangad. Learned Magistrate took cognizance of the offences under Sections 452, 323, 354, 294(b) read with Section 34 of Indian Penal Code against six accused on Annexure-A2 complaint, after recording the sworn statement of the complainant. Annexure-A2 was a protest complaint. Original complaint filed before the Magistrate was forwarded for investigation under Section 156(3) of Code of Criminal Procedure and investigated as crime No.49/2004. Annexure-A1 refer report was filed after investigation. It is thereafter Annexure-A2 protest complaint was filed. When the learned Magistrate took cognizance of the offence, first accused filed Crl.M.C.3578/2005 under Section 482 of Code of CRMC 4167/08 9 Criminal Procedure to quash the complaint and the proceedings. Under Annexure-A3 judgment, this court found that continuation of the proceeding against petitioner therein as per Annexure-A2 complaint herein is only an abuse of process of court and quashed the same. The remaining accused filed this petition seeking the very same relief. 2. Though notice was sent to first respondent, the complainant before the learned Magistrate, and notice was served on her she did not enter appearance. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. As is clear from Annexure-A1 refer report as well as Annexure-A3 judgment of this court, there was a transaction between first accused and husband of first respondent in respect of all the properties. Three civil suits are pending in respect of the same. The incident alleged to have taken place, based on which the cognizance was taken, was in respect of the one and same transaction. When this court has already found in Annexure-A3 judgment, after hearing first respondent, that based on the complaint filed by first accused cognizance should CRMC 4167/08 10 not have taken by the learned Magistrate against husband of the first respondent and the complaint was filed for the first time after ten months of the incident, continuation of the proceedings is only an abuse of process of court. All the findings in Annexure-3 judgment squarely applies to the case of the petitioner also. In such circumstances, it can only be found the continuation of the proceedings as against petitioner is only an abuse of process of court. Petition is allowed. In the interest of justice C.C.316/2005 on the file of Judicial First Class Magistrate-II, Nedumangad as against petitioners are quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.