IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 Crl.MC.No. 2609 of 2006() ------------------------------------ CRIME NO.427/2006 OF MANJERI POLICE STATION --------------------- PETITIONER(S): (ACCUSED NOS.1 TO 3): ----------------------------------------------------------- 1. KONGATH PATHUMMA, W/O. LATE POLLAKKUNNAN MUHAMMED,POLLAKKUNAN HOUSE, THIRUVAZHAMKUNNU P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT. 2. POLLAKKUNNAN FIROZKHAN, S/O. KONGATH PATHUMMA, POLLAKKUNNAN HOUSE, THIRUVAZHAMKUNNU P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT. 3. POLLAKKUNNAN SHANAVASKHAN, S/O.KONGATH PATHUMMA, POLLAKKUNNAN HOUSE, THIRUVAZHAMKUNNU P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): (COMPLAINANT): ---------------------------------------------------- 1. ERIKKUNNAN SHOUKKATHALI, S/O. ERIKKUNNAN HYDRU HAJI, ERIKKUNNAN HOUSE, NARUKARA AMSOM, KOTTUPATTA DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE BY ADV. SRI.P.K.VIJAYAMOHANAN R2 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.2609 of 2006 --------------------------------------- Dated this 27th day of May, 2011 ORDER Petitioners are accused 1 to 3 in Crime No.427 of 2006 of Manjeri Police Station for offences punishable under Secs.420 and 120B r/w Sec.34 of the Indian Penal Code. That case was registered on the basis of Annexure-A, complaint filed before learned Chief Judicial Magistrate, Manjeri and forwarded to the police for investigation. Petitioners challenge Annexure-E, complaint and Annexure-F, FIR registered on the strength of that complaint on the ground that no offence as alleged is disclosed and that what is involved is only a civil liability. Learned counsel contends that instead of filing a suit for specific performance based on Annexure-A, agreement the first respondent has chosen a short cut way of filing a criminal case. In view of the circumstances of the case, the complaint is without bonafides and substance and is liable to be quashed. Learned counsel for first respondent contended that having regard to the allegations made in the complaint, registration of the FIR is perfectly justified, matter is to be investigated and there is no reason to interfere. I have heard learned Public Prosecutor also. Crl.M.C.No.2609 of 2006 -: 2 :- 2. The dispute arises from Annexure-A, agreement dated 07.07.2005. Admittedly it is executed between petitioners and the first respondent as per which petitioners agreed to transfer ownership and possession of 9.29acres of land belonging to them for consideration at the rate of `.18,800/- per cent. It is not disputed that at the time of execution of Annexure-A, agreement `.1,00,000/- was given to the petitioners as advance followed by payment of another sum of `.1,00,000/-, receipt of which is endorsed on Annexure-A, agreement itself. The time fixed for performance of the agreement as per Annexure-A, agreement was six months which was to expire on 06.01.2006. While so, petitioners sent Annexure-B, notice on 06.01.2006 calling upon the first respondent to perform his part of the contract. To that notice, first respondent gave Annexure-D, reply dated 04.05.2006 where it is stated that first respondent was ready and willing to perform his part of the contract but, enquiry with the village office revealed that the property agreed to be sold is heavily encumbered. First respondent then filed Annexure-E, complaint before the learned Chief Judicial Magistrate on 23.06.2006. 3. The contention of learned counsel is that notwithstanding that petitioners had expressed their willingness Crl.M.C.No.2609 of 2006 -: 3 :- to perform their part of the contract even before expiry of the period of agreement as stated in Annexure-B, notice dated 06.01.2006 first respondent was not ready and willing to perform his part of the contract and instead, after about five months gave Annexure-D, reply dated 04.05.2006 alleging that the property is heavily encumbered. What is involved is only a civil liability. 4. In Annexure-D, reply first respondent has stated that on enquiring with the village office it was revealed that the property agreed to be sold by the petitioners had been mortgaged with the Mannarkkad Agricultural Development Bank for a sum of `.6,00,000/- in the year 1999 and 2001, the said liability was subsisting on the date of agreement and thereafter and that there was also sale tax arrears payable by the petitioners for which revenue recovery proceedings had been initiated. These aspects were highlighted in Annexure-D, reply but there was no attempt on the part of petitioners to discharge that liability and execute the sale deed as agreed in Annexure-A, agreement. Learned counsel for first respondent has invited my attention to Annexure-A, agreement where it is stated that within the period of six months provided therein petitioners have clear all defects regarding title if any and convey the property. Crl.M.C.No.2609 of 2006 -: 4 :- According to learned counsel for first respondent, there is no mention about the subsisting liabilities over the property in Annexure-A, agreement which according to learned counsel was suppressed from the notice of first respondent at the time of execution of the agreement. Petitioners do not however admit of any such liability over the property. I think that these are matters which the investigating agency has to look into. 5. It is not as if because a civil remedy was available to the first respondent, he was precluded from filing a complaint if any offence is involved. Whether there was any liability over the property at the relevant time and petitioners have suppressed it while executing Annexure-A, agreement and any cheating as pleaded by first respondent is involved are matters which the investigating agency has to look into. Learned counsel for first respondent has also invited my attention to illustration (i) of Sec.415 of the IPC to buttress his contention. I do not find reason to interfere with the registration of the case, with Annexure-E, complaint and Annexure-F, FIR or the investigation. This criminal miscellaneous case is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge