IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD JULY, 2008 / 12TH ASHADHA, 1930 Crl.MC.No. 3578 of 2005 (B) (CC.316/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD) .................... PETITIONER/1ST ACCUSED: ---------------------------------- CHANDRASEKHARAN, S/O.BENATHICOSE NADAR, T.C.10/2161, SIVA SARAS, KANJIRAMPARA.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.VPK.PANICKER RESPONDENTS/COMPLAINANT AND STATE: ----------------------------------------------------- 1. SRIKALA DEVI, D/O.OMANAMMA, RESIDING AT KACHANI, ARUVACODE KONATH PUTHENVEETTIL, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, THE HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.R.S.KALKURA FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No. 3578 of 2005 - B --------------------------------------------- Dated this the 3rd day of July, 2008 O R D E R The first accused in C.C.No.316 of 2005 on the file of the Judicial First Class Magistrate Court, Nedumangad is the petitioner before this Court, who seeks an order to quash Annexure A6 complaint filed by the first respondent herein and C.C.No.316 of 2005 thereon. The petitioner submits that the above case as far as he is concerned is a frivolous complaint and therefore, the continuance of all proceedings upon Annexure A6 complaint and C.C.No.316 of 2005 will amount to abuse of process of court as against the petitioner. The petitioner's case can be summarised as follows:- 2. The petitioner and the husband of the first respondent entered into an agreement dated 4.3.2002 for the sale of a shop room bearing No.T.C.No.1/140 for a total consideration of Rs.2,25,000/-. The petitioner, being the purchaser, paid a sum of Rs.25,000/- as advance to the husband of the first respondent on the date of agreement Crl.M.C.NO.3578 of 2005 :-2-: itself. Thereafter, a sum of Rs.1,50,000/- was paid on 17.1.2003 and the remaining balance amount of Rs.50,000/- on 5.2.2003. It is the case of the petitioner that the key of the shop room was given to the petitioner, but no sale deed was executed by the husband of the first respondent. Under the above circumstances, the petitioner herein had preferred O.S.No.189 of 2003 before the Sub Court, Thiruvananthapuram. Annexure-1 is the plaint. The above suit was filed on 2.4.2003 and the petitioner had obtained an injunction order against the husband of the first respondent herein. It is the further case of the petitioner that even though there was an injunction order in the suit, the husband of the first respondent herein along with others forcibly entered into the shop room in question at about 7 a.m. On 24.6.2003, broke opened the lock and caused damages. The petitioner as well as the local people went to the shop room and the Crl.M.C.NO.3578 of 2005 :-3-: Police also came on the spot and the husband of the first respondent and certain others were removed by the Police. It is the allegation of the petitioner that the police, however, did not take any further action to prosecute the culprits. Therefore, the petitioner had preferred a private complaint before the court below, which was transmitted to the Vattiyoorkavu Police Station under Section 156(3) of the Code of Criminal Procedure where a crime was registered and after investigation, they filed a final report against the husband of the first respondent and certain others for the offences punishable under Sections 427,447,441,442,445,447,378 read with Section 511 and 34 of I.P.C. Accordingly, the court took cognizance upon the above police report and instituted C.C.No.242 of 2004. The petitioner further submitted that in the mean while, the first respondent herein had preferred a suit as O.S.No.1625 of 2003 before the Munsiff's Court, Crl.M.C.NO.3578 of 2005 :-4-: Thiruvananthapuram for a declaration that she is entitled to half share of the property viz., the shop room which is the subject matter of the agreement between the petitioner and the husband of the first respondent. It is also prayed for a declaration that she is not bound by the agreement dated 4.3.2002 entered into between the petitioner and her husband. When the first respondent herein preferred the above suit, the petitioner herein filed another private complaint before the same court against the first respondent and her husband, with the allegation that they have committed the offences punishable under Sections 415,420,423 and 120(B) of the I.P.C. The said complaint was also sent for investigation under Section 156(3) of the Cr.P.C. based upon which the Police undertook investigation and filed a final report on the basis of which C.C.No.121 of 2004 is instituted. It is the further case of the petitioner that C.C.No.121 of 2004 was instituted in the court below Crl.M.C.NO.3578 of 2005 :-5-: based upon the report of the police after investigation of the complaint dated 17.12.2003, filed before the court below. 3. The first respondent herein had preferred a private complaint, a copy of the same is produced as Annexure A4 before the court below on the allegation that the petitioner and others trespassed into the shop room in question at about 8 a.m. on 24.6.2003 and tried to manhandle the husband of the first respondent, the complainant therein and when she intervened, she was also again manhandled. The said complaint also was sent for investigation under Section 156(3) of the Code of Criminal Procedure before the Vattiyoorkavu Police Station, based upon which they registered a crime as evidenced by Annexure A4 F.I.R. Thereupon, after investigation, the Police filed a refer report i.e., Annexure A5. Aggrieved by Annexure A5 report, the first respondent herein preferred a protest complaint Crl.M.C.NO.3578 of 2005 :-6-: dated 25.1.2005, a copy of which is produced as Annexure A6. Upon Annexure A6 complaint, the court below took cognizance and instituted C.C.No.316 of 2005. It is the above protest complaint and the case instituted thereon as C.C.No.316/2005 are being sought to be quashed in these proceedings. 4. I have heard the learned counsel for the petitioner as well as counsel appearing for the first respondent and also the Public Prosecutor. 5. On the basis of the above factual background involved in the case, the learned counsel for the petitioner submits that Annexure A6 protest complaint is a frivolous complaint and the court below ought not have taken the same on file. The continuance of the proceedings against the petitioner before the court below will amount to abuse of process of court. In support of the above contention, the learned counsel for the petitioner invited my attention to Annexure A6 Crl.M.C.NO.3578 of 2005 :-7-: complaint and also the sworn statement of the first respondent and also other witnesses who were examined under Section 200 of the Code of Criminal Procedure. 6. Per contra, the learned counsel for the first respondent submits that the whole incident was planned and managed by the petitioner as he is the ultimate beneficiary of the agreement alleged to have entered into between himself and the husband of the first respondent. According to counsel for the first respondent, the allegations contained in Annexure A6 protest complaint are sufficient to attract the offences alleged against the petitioner. Therefore, counsel submits, there is no illegality in taking cognizance by the court below upon Annexure A6 protest complaint against the petitioner. 7. I have carefully considered the rival contentions advanced by counsel appearing for both the parties and also perused the materials available on Crl.M.C.NO.3578 of 2005 :-8-: record. As stated earlier, the parties are in frequent fight both on criminal side as well as on civil side especially, on the basis of the alleged agreement dated 4.3.2002 which is said to have been entered into between the petitioner as well as the husband of the first respondent. It is the case of the petitioner that a total sum of Rs.2,25,000/- was received by the husband of the first respondent herein connected with the alleged transaction regarding the sale of shop room. It is also the fact that on the basis of the complaint of the petitioner, C.C.No.242 of 2004 was instituted on taking cognizance upon the police report against the husband of the petitioner. It is also a fact that three suits are pending between the parties. The first suit was preferred by the petitioner for specific performance against the husband of the first respondent herein. It is after the filing of the above suit, the alleged incident which is the subject matter of C.C.No.242 of 2007 had Crl.M.C.NO.3578 of 2005 :-9-: taken place on 24.6.2003. However, since the first respondent herein had filed a suit as O.S.No.1628 of 2003 for declaration as mentioned above, the petitioner herein had filed another private complaint before the court below on 17.12.2003 alleging the commission of offence punishable under Sections 415,420,423 and 120 (B) of the I.P.C. based upon which the Police conducted an investigation and filed a final report and the court has acted upon it. As pointed out earlier, the above private complaint is dated 17.12.2003. C.C.No.242 of 2004 was also instituted based upon the private complaint filed by the petitioner immediately after the incident that had taken place on 24.6.2003. Therefore, it appears that till the filing of the private complaint dated 17.12.2003, no complaint was filed by the first respondent either before the concerned Police authorities or before the court below. Crl.M.C.NO.3578 of 2005 :-10-: 8. The first respondent has now chosen to file a private complaint after the expiry of ten months from the date of the alleged incident which is claimed to have taken place on 24.6.2003. Annexure A4 is the F.I.R.registered on the basis of the private complaint filed by the first respondent herein. In the said private complaint, the allegation was that the accused Nos.1 to 6 including the petitioner herein trespassed into the above mentioned shop room, holding the shirt collar of the first respondent's husband and asked, why the goods in the shop room were removed and when the de facto complainant, the first respondent intervened, the third accused caught at the blouse of the de facto complainant and touched on her breast and accused Nos.2,4,5 and 6 hit on the back and cheeks of the complainant and the first accused uttered at her by using obscene words and threatened her. On the basis of the said allegation, after registering Annexure A4 F.I.R., the Police undertook the Crl.M.C.NO.3578 of 2005 :-11-: investigation, but they found that the allegation is false and accordingly, they filed Annexure A5 refer report. The refer report discloses that the Police has conducted a detailed enquiry and they have affirmed the transaction entered into between the husband of the first respondent and the petitioner. In the said report, it is futher stated that they have already undertook the investigation in Crime No.111 of 2003 which was registered on the basis fo the private complaint filed before the court below, and they filed final report on 28.12.2003. They further reported that the present complaint was filed when the first respondent came to know regarding the filing of the report in C.C.No.242 of 2004. In unequivocal terms, the Police has stated before the court below that the allegations put forward by the first respondent are absolutely false and no such incident has taken place and accordingly, they have referred the report. From the above, it appears to me Crl.M.C.NO.3578 of 2005 :-12-: that the Police has conducted a detailed enquiry and came into a conclusion that the offence alleged against the petitioner is absolutely false and baseless. 9. On the basis of the argument advanced by counsel for the respondents, I have again examined Annexure A6 complaint and the sworn statement of the de facto complainant. Going by Annexure A6 protest complaint and the sworn statement of the first respondent, it can be seen that no overt act is alleged against the petitioner. At this juncture, it is appropriate to recall the background of the case which leads to the filing of the protest complaint. There was an alleged transaction between the petitioner and the husband of the first respondent. Three civil cases are pending altogether and also the Police had filed a final report against the husband of the de facto complainant, the first respondent herein and also another case has been registered against the first respondent as well as against Crl.M.C.NO.3578 of 2005 :-13-: her husband that is pending as C.C.No.121 of 2004. It is also a fact that the first respondent had filed a private complaint on the basis of which Annexure A4 F.I.R. was registered. Even after the above civil proceedings as well as the above criminal proceedings, there is no whisper against the petitioner and no overt act is alleged against him connected with the incident alleged to have taken place on 24.6.2003. The only allegation against the petitioner is that the first petitioner herein held the collar of her husband after trespassing. But, the husband of the first respondent did not approach the Police or Court with such case. The other witnesses examined also do not say any overt act against the petitioner. It is also a fact that as per Annexure A5 report, the Police already came into a conclusion that no such incident had taken place as alleged by the first respondent. It is also relevant to note that though the alleged incident had taken place on 24.6.2003, the first Crl.M.C.NO.3578 of 2005 :-14-: respondent had chosen to file a complaint only on the expiry of ten months and that too after the registration of the criminal case both against the first respondent as well as against her husband. In the absence of any plausible and satisfactory explanation for the delay persuasive factor to hold that the belated complaint and protest complaint are filed on experimental basis, it assumed the character of frivolous and vexatious nature. 10. In the above circumstances, I am of the view that Annexure A6 protest complaint is only a frivolous one and the court ought not have taken cognizance upon such frivolous petition against the petitioner. If the proceedings against the petitioner are allowed to continue, the same will amount to abuse of process of the court. 11. In the light of the above discussion, I am of the view that the continuance of the proceedings against the petitioner as per Annexure A6 complaint and Crl.M.C.NO.3578 of 2005 :-15-: C.C.No.316 of 2005 will amount to abuse of process of the court and therefore, the same are liable to be quashed to the extent the same are against the petitioner. The Crl.M.C. is allowed to that extent. There will be no order as to costs. V.K.Mohanan, Judge MBS/ Crl.M.C.NO.3578 of 2005 :-16-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- O R D E R Crl.M.C.NO.3578 of 2005 :-17-: DATED: -6-2008 Crl.M.C.NO.3578 of 2005 :-18-: