Quashed

A.Muhammed Yusuf v. State of Kerala and Another

Kerala HC17 Sept 2012Crl.MC/2881/2007

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings against a second accused (petitioner) in a fraud case involving a sale deed. The court held there was insufficient material to impute dishonest intention to the purchaser, who was bound by prior court orders protecting the complainant's tenancy rights under the Kerala Land Reforms Act.

What did the court decide?

The criminal proceedings against the petitioner (second accused) under S. 465 r/w 34 IPC are quashed.

A.Muhammed Yusuf Vs State of Kerala and Another — Property and Title | Kerala HC (2012)

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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 N.K.BALAKRISHNAN

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MONDAY, THE 17TH DAY OF SEPTEMBER 2012/26TH BHADRA 1934

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Crl.MC.No. 2881 of 2007 ( )

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--------------------------AGAINST CRIME NO.672/07 OF ADOOR POLICE STATION C.C 1181/07 OF JFCM ADOOR

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PETITIONER(S)/2ND ACCUSED:

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A.MUHAMMED YUSUF, S/O.ABDUL KHADER, AGED 51 YEARS, NIHAL MANZIL, KANNAMCODE MURI ADOOR VILLAGE.

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BY ADVS.SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER

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COMPLAINANT(S)/COMPLAINANTS:

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM (THROUGH SUB INSPECTOR OF POLICE ADOOR POLICE STATION).

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2. KAMALAKARA PANICKER, KAMALALAYAM, PANNIVIZHA, ADOOR.

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BY ADV. SRI.D.KISHORE BY ADV. PUBLIC PROSECUTOR SRI. ROY THOMAS

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.2881/07

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-2-

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE A1: COPY OF THE COMPLAINT NUMBERED AS CMP NO.4760/07 DT. 02.08.07

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ANNEXURE A2: COPY OF FIR DT.10.08.07 IN CRIME NO.676/07 ANNEXURE A3: COPY OF THE SALE DEED NO.3977/06 DT.30.11.06 OF ADOOR SRO ANNEXURE A4: COPY OF THE PLAINT IN O.S.NO.262/07 OF MUNSIFF COURT ADOOR ANNEXURE A5: COPY OF FINAL REPORT DT.25.09.07 IN CC 1181/07 OF JFCM ADOOR

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RESPONDENT'S EXHIBITS : NIL

// True copy //

PA to Judge

das

N.K.BALAKRISHNAN, J.

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==================

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Crl.M.C. No. 2881 of 2007

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========================= Dated this the 17^th day of September, 2012

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ORDER

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The second respondent is the defacto complainant in Crime No.672/2007 of Adoor Police Station. This petition was filed by A2 in that case to quash the FIR registered against him. Subsequently, the final report was filed by the police against this petitioner and the first accused in that case for offence under Sec.465 r/w 34 of IPC. Accordingly, the petition was got amended seeking a prayer to quash further proceedings to be taken by the learned Magistrate pursuant to the final report filed in the aforesaid crime.

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Shop rooms bearing no.503 and 504 were in possession of the defacto complainant. In the suit filed by the defacto complainant, plea regarding the protection claimed by him under Sec.106 of the Kerala Land

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Crl.M.C.No.2881/2007

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Reforms Act, was referred to the Tribunal for a finding. The Land Tribunal found that the defacto complainant is entitled to protection under Sec.106 of KLR Act. That finding was confirmed finally by this court in Second Appeal 872/1988. It is further submitted that the suit filed by the first accused in respect of the same subject matter was dismissed.

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It is alleged by the defacto complainant that the fact that protection under Sec.106 of KLR Act was given to the defacto complainant, in the decisions rendered by the courts including this court was conveniently suppressed by the first accused and he executed a sale deed in favour of the second accused, as if, the first accused was in absolute possession of the shop rooms bearing Nos.503 and 504 and as such, according to the defacto complainant, the first accused committed the offence under Sec.423 of IPC. The learned counsel for the defacto complainant submits that though in the FIR and in the charge sheet filed by the police, the offence

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Crl.M.C.No.2881/2007

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mentioned is Sec.465 r/w 34 of IPC, on going through the records and the substance of the allegations mentioned in the charge it is clear that the correct Section of offence should be Sec.423 r/w 34 of IPC. The learned counsel submits that Sec.423 of IPC would certainly be attracted in this case since the first accused who was bound by the earlier decisions was aware of the fact that the defacto complainant was in possession of the shop room Nos. 503 and 504. When he incorporated a recital in the sale deed to the effect that he was in possession of the same it can be found that it was done fraudulently with intend to cause wrongful loss to the defacto complainant.

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Learned counsel for the petitioner submits that so far as the second accused is concerned, he purchased the property from A1 paying due consideration and since he is only a bona fide transferee, he cannot be fastened with any criminal liability. It is further submitted by the learned counsel that, if at all, the remedy of the complainant is to sue for cancellation of the sale deed or

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Crl.M.C.No.2881/2007

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for getting that sale deed declared as null and void to the extent it affects the right or interest of the defacto complainant. But this submission is resisted by the learned counsel for the defacto complainant, who points out that the second accused was also a party to the fraudulent transaction, since he (A2) had executed a lease deed in favour of the complainant in respect of shop room No.504 and he became the lessee of that shop room. Therefore, according to the complainant, the second accused cannot feign ignorance or put forward a plea that he is a bona fide transferee and as he was aware of the indefeasible right of the complainant the petitioner should not have obtained a sale deed suppressing the right of the complainant. Since the second accused obtained room No.504 from the complainant by executing a lease deed much prior to the impugned sale deed, knowledge has to be imputed against the second accused as well, the learned counsel for the complainant submits. The further argument is

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Crl.M.C.No.2881/2007

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that, even if, there are other contentions to be advanced by the petitioner, he can do so before the trial court at the stage of Sec.239 of Cr.P.C. and can request for an order of discharge. But the learned counsel for the petitioner submits that it is only a summons case and so petitioner cannot request for an order of discharge.

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Since the police filed final report under Sec.465 r/w 34 of IPC, charge cannot be simply altered, the petitioner contends. Learned counsel for the petitioner submits that the fact that A1 was the absolute owner of the property, is not disputed by the complainant. If A1 was the absolute owner of the property, sale deed executed by A1 in favour of A2 cannot be questioned at all. Even if a wrong recital was made in the document, that cannot give rise to a cause of action to have a criminal prosecution, especially against the vendee because normally the vendee does not incorporate terms in the sale deed. The learned counsel for the complainant submits that as the right of the complainant as projected

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Crl.M.C.No.2881/2007

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earlier was not mentioned in the sale deed if the second accused creates a mortgage in respect of the said property and if the mortgagee proceeds against the property then ultimately the complainant would suffer. It is that apprehension, which is now projected by the complainant.

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The second accused is only a purchaser. Except that the sale deed does not contain a recital regarding the protection given to the complainant under Sec.106 of the KLR Act, there is no other material to hold that this petitioner had the mens rea. The primary liability was on the first accused who executed the sale deed. It can not be said that A2 made the false recital in the sale deed with dishonest intention so as to put him to trial for offences under Secs.465 or 423 of IPC.

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Therefore, the proceedings as against this petitioner is quashed.

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Sd/- N.K.BALAKRISHNAN, JUDGE

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das

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// True copy //

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PA to Judge

A.Muhammed Yusuf v. State of Kerala and Another

Case brief

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A.Muhammed Yusuf v. State of Kerala and Another

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