Allowed

Shoukkath v. State of Kerala & Another

Kerala HC10 Sept 2012Crl.MC/553/2007

Case brief

AI extract

What is this about?

Petitioner challenged the lower court's cognizance in a criminal complaint alleging cheating and cheating by deception without prior sanction under Section 188 of Cr.P.C. and without considering a police report deeming the dispute civil. The High Court allowed the petition in part, remanding the matter to the Magistrate for fresh consideration of the sanction requirement and the police report with

What did the court decide?

The Criminal Misc. Case was allowed to the extent indicated; the matter remanded to the lower court for fresh consideration.

Shoukkath Vs State of Kerala & Another — Civil Procedure and Limitation | 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 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934

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Crl.MC.No. 553 of 2007 ( )

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CC.427/2001 of J.M.F.C.-I,KOZHIKODE

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PETITIONER(S)/1ST ACCUSED:

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VILANGAPPURATHU SHOUKKATH, S/O. ABDU, V.P. HOUSE, ANGADIPPURAM P.O., PERINTHALMANNA MALAPPURAM DISTRICT.

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BY ADV. SRI.GEORGE SEBASTIAN

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COMPLAINANT(S)/STATE AND COMPLAINANT:

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1. STATE OF KERALA, REP. BY

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PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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2. ANWAR SADATHU BEERAN, S/O. BEERAN,

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GOLDEN FISH AGENCIES, OPP. KOYENCO BUILDING

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S.M.STREET CROSS ROAD, KOZHIKODE.

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R1 BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS R2 BY ADV. SRI.P.V.KUNHIKRISHNAN

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 553 of 2007 ( )

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APPENDIX

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PETITIONERS ANNEXURES:

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ANNEXURE A: TRUE COPY OF THE COMPLAINT IN C.C. 427/2001 OF JFCM-I KOZHIKKODE FILED BY THE 2ND RESPONDENTS

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ANNEXURE B: TRUE COPY OF THE NOTICE DATED 28.02.01 ISSUED BY THE SUB INSPECTOR OF POLICE CALICUT TOWN TO THE 2ND RESPONDENTS

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ANNEXURE C: TRUE COPY OF THE SAID ORDER DATED 22.01.07 OF JFCM I, KOZHIKKODE UNDER SECTION 83 OF THE CODE OF CRIMINAL PROCEDURE

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RESPONDENTS ANNEXURES:

NIL

//TRUE COPY//

P.A.TO JUDGE

JJJ

N.K. BALAKRISHNAN, J.

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Crl. M.C. No: 553 of 2007

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Dated this the 10^th day of September, 2012

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O R D E R

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The petitioner is the 1^st accused in C.C. No:427/2001 of

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Judicial First Class Magistrate, Kozhikkode. The 2^nd respondent is the complainant. A protest complaint was filed by him against this petitioner and the 2^nd accused alleging commission of offences under sections 418 and 420 r/w 34 of IPC. After recording the sworn statement of the complainant and one witness, the learned Magistrate took cognizance of the offences under sections 418 and 420 r/w 34 of IPC and process was issued to the accused.

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The petitioner, who is the 1^st accused, challenges the cognizance taken against him on the following grounds. Even as per the complaint the petitioner herein was not actually a party to the alleged contract. The alleged contract actually took place from Dubai. No sanction for

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Crl.M.C. No: 553/2007

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prosecution, as required under section 188 of Cr.P.C., was obtained by the complainant. Since cognizance was taken by the learned Magistrate ignoring the provisions under section 188 of Cr.P.C., the cognizance taken by the learned Magistrate is to be quashed. It is also argued by the learned counsel that since the police, after detailed investigation, had referred the case as a dispute of civil nature, the learned Magistrate should have considered that report also. But that was not adverted to by the learned Magistrate and so on facts also cognizance taken by the learned Magistrate cannot be sustained.

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The learned counsel for the

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respondent/complainant submits that sanction under section 188 of Cr.P.C, is not required since part of the cause of action took place at Kozhikode, within the territorial jurisdiction of the learned Magistrate. For that purpose the learned counsel refers to the first part of the complaint,

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Crl.M.C. No: 553/2007

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based on which the statement was given by the complainant and one witness, which is to the effect that when the second accused came back to the native place in May 1997, he made the complainant to believe that a hotel situated in Dubai, belonging to A2, was available to be sold, and accepting the offer the complainant agreed to pay 55,000 dirhams and accordingly the parties entered into a contract for sale of the hotel situated in Dubai. But the subsequent statement of the complainant would show that the remaining transaction took place from Dubai. The learned counsel for the petitioner submits that simply because the 2^nd accused had contacted the complainant stating that the hotel belonging to the petitioner herein was available to be sold, the petitioner cannot be roped in. At any rate, so far as the petitioner is concerned, cognizance could have been taken only after getting sanction under section 188 of Cr.P.C., since even during the alleged talk/conversation

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Crl.M.C. No: 553/2007

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between the complainant and the 2^nd accused, the petitioner herein was abroad, it is further argued. Not only that, there is no averment to the effect that the petitioner herein had made any representation to the complainant that he would sell the hotel or any other building to the complainant. These aspects were not considered by the learned Magistrate at all. The further fact that the Police had filed a refer report stating that the dispute is of civil nature, was also not considered by the learned Magistrate.

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According to the learned counsel for the complainant it is a continuing offence, the first part took place from Kozhikode and the remaining part alone took place from Dubai, and that the cause of action would include the first part of the representation made from Kozhikode and the remaining part which took place from Dubai and it cannot be so segregated or severed and if that be so, the offence being a continuing one, it can be said that the

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Crl.M.C. No: 553/2007

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offence had its inception in Kozhikode, in which case the sanction under section 188 of Cr.P.C. is not required. This submission is strongly resisted by the learned counsel for the petitioner pointing out that there is no allegation against this petitioner that he had made any representation or done any part of the alleged transaction within India.

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However, I am not making any observation regarding the same, since I am of the opinion that it is a matter to be sent back to the lower court for consideration afresh.

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The learned Magistrate will dispose of the matter afresh taking note of the refer report submitted by the Investigating Officer and also all other factors as referred to above. The physical presence of the parties need not be insisted by the learned Magistrate till decision is taken in the matter; whether cognizance is to be taken or not.

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Crl.M.C. No: 553/2007

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In the result this Criminal M.C. is allowed to the extend indicated above. The learned Magistrate will reconsider the entire matter and will pass appropriate orders. The Magistrate will take up the matter on 27.09.2012 .

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Sd/N.K. BALAKRISHNAN, JUDGE

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//True Copy//

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P.A. to Judge

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jjj

Shoukkath v. State of Kerala & Another

Case brief

What is this about?

What did the court decide?

Shoukkath v. State of Kerala & Another

Case brief

What is this about?

What did the court decide?

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