Allowed

Paravathy Nair v. K.Narayanan Nair

Kerala HC6 Jun 2008Crl.MC/508/2008

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings under Section 420 IPC instituted against the petitioner for allegedly cheating the complainant by failing to complete a property sale. The court held that the dispute was clearly civil in nature, with a specific performance suit pending, and the criminal charge was an abuse of process as no offence was made out.

What did the court decide?

The proceedings pending against the petitioner in C.C. No. 425/2007 are quashed; the Criminal Miscellaneous Case is allowed.

Paravathy Nair Vs K.Narayanan Nair — Specific Performance | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER

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FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930

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Crl.MC.No. 508 of 2008

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-------------------------------------CC.425/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA

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PETITIONER:

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PARVATHY NAIR RESIDING AT EASWARIVILASAM, SASTHAMANGALAM

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THIRUVANANTHAPURAM.

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BY ADV. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN

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RESPONDENTS / RESPONDENTS

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K. NARAYANAN NAIR, DEEPTHI VADAKKEKOTTA THOPPIL, NEYYATTINKARA.

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THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.JAI GEORGE

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SRI.C.RAJENDRAN FOR R1

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.K.BASHEER, J.

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- - - - Crl.M.C.No.508 OF 2008

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- - - - Dated this the 6^th day of June 2008

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ORDER

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Petitioner who has been summoned by the Judicial Magistrate of First Class-I, Neyyattinkara, to face trial for the offence punishable under Section 420 of the Indian Penal Code in C.C.No.425 of 2007 has preferred this petition under Section 482 of the Code of Criminal Procedure seeking to quash the above proceedings pending against her.

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The Learned Magistrate has issued process to the petitioner on Annexure VI complaint filed by respondent No.1 herein. In the said complaint, it is seen alleged that the petitioner had agreed to sell the landed property having a total extent of 1 acre 4 cents in Survey Nos. 337/2A5, 2A6, 2B6,2C5, 2D6, 2E4 and 337/3B5 situated within the limits of Neyyattinkara Municipality to the complainant. It is further alleged that a car shed constructed in a portion of the said property having an extent of 6 cents, is being used by the complainant ever since 1964. According to the complainant,

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Crl.M.C.No.508 OF 2008 :: 2 ::

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petitioner/accused had informed him about his intention to sell the property on August 20, 1989 at his residence. The complainant further claimed that petitioner had orally agreed to sell the property to him for a total consideration of Rs.1,50,000/-. He paid a sum of Rs.25,000/- as advance on September 1, 1989 by way of a cheque drawn on Neyyattinkara Branch of Thiruvananthapuram District Co-operative Bank. The further allegation in the complaint is that he had been remitting the building tax for the shed ever since 1964. In the meanwhile, a suit for specific performance in respect of the said property was instituted against the petitioner and one Anilkumar.

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To make a long story short, the case of the complainant in Annexure VI appears to be that the petitioner had resiled from her oral promise to sell the property to him. Therefore, he filed a complaint against the petitioner alleging commission of offences under Sections 417 and 420 of the Indian Penal Code before the Judicial Magistrate of Fist Class, Neyyattinkara. But the said complainant was referred by the police after investigation.

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Crl.M.C.No.508 OF 2008

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:: 3 ::

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Thereafter, the present complaint (Annexure VI) was filed, which was forwarded by the learned Magistrate to the Police for investigation under Section 156 (3) of the Code. It is also pertinent to note that prior to institution of the above compliant, the complainant had filed O.S.No.386 of 2006 against the petitioner and Sri.Anil Kumar praying for a decree of permanent prohibitory injunction restraining them from dispossessing him. It has come out from the records that the Munsiff Court, Neyyattinkara had dismissed the interlocutory application filed by the complainant for a temporary injunction in the said suit.

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According to the petitioner, she had never agreed to sell the property to the complainant nor was he ever put in possession as alleged. On the contrary, petitioner had sold a small extent of the property to Sri.Anil Kumar mentioned above. The said Anil Kumar had filed an application for temporary injunction against the complainant in the suit referred to above. Both these applications were disposed of by the Learned Munsiff by a common order, a copy of which is on record as Annexure IV.

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Crl.M.C.No.508 OF 2008

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The learned Munsiff found that the complainant had never been put in possession of the property. The Learned Munsiff also found that Sri. Anil Kumar was in possession pursuant to the sale in his favour. It is also on record that the appeal (CMA 33/2006) preferred by the complainant against the order of the Munsiff Court was dismissed by the Subordinate Judges' Court, Neyyattinkara on July 31, 2007.

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As mentioned earlier, the complainant has instituted a suit for specific performance (O.S.No.57/2007) before the Subordinate Court, Neyyattinkara. Petitioner has produced a certified copy of the said plaint as Annexure VII. It is not necessary to refer to the various averments in Annexure VII plaint at this stage. Suffice it to say that the case now sought to be projected by the complainant in Annexure VI complaint would undoubtedly fall within realm of a civil dispute.

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Sri.Rajendran, learned counsel for respondent No.1, vehemently contended that the offence under Section 420 IPC had been clearly made out and therefore, the prayer now made by the petitioner to quash the proceedings pending against her

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Crl.M.C.No.508 OF 2008

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:: 5 ::

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is totally misconceived. I am unable to agree with that contention.

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I do not propose to make any further comment on the merit or tenability of the various allegations made in the complaint at this stage particularly since admittedly a civil suit is pending between the parties. However, having heard the learned Senior Counsel for the petitioner and having perused the materials available on record, I have no hesitation to hold that the proceeding in Annexure VI complaint is clearly an abuse of process. Prima facie I am satisfied that no criminal offence, much less an offence punishable under Section 420 IPC and that too on the basis of an alleged oral agreement for sale, has been made out against the petitioner.

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Therefore, the proceedings pending against the petitioner in C.C. No. 425/2007 on the file of the Judicial Magistrate of First Class-I, Neyyattinkara are quashed. Criminal M.C. is allowed.

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(A.K.BASHEER, JUDGE)

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jes

Paravathy Nair v. K.Narayanan Nair

Case brief

What is this about?

What did the court decide?

Paravathy Nair v. K.Narayanan Nair

Case brief

What is this about?

What did the court decide?

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