Allowed

Sanjeev Kumar K.P. v. Puthanpurayil Abdul Salam

Kerala HC10 Jul 2014Crl.MC/4000/2012

Case brief

AI extract

What is this about?

The Kerala High Court quashed a criminal complaint filed under Sections 420 and 406 IPC concerning a breach of an agreement to assign immovable property. The Court held the dispute was civil in nature with specific remedies available in civil courts, constituting an abuse of the criminal process.

What did the court decide?

The complaint in CC No.260 of 2007 is quashed. All pending interlocutory applications are dismissed.

Sanjeev Kumar K.P. Vs Puthanpurayil Abdul… — Contract and Commercial Disputes | Kerala HC (2014)

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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.HARIPRASAD

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THURSDAY, THE 10TH DAY OF JULY 2014/19TH ASHADHA, 1936

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Crl.MC.No. 4000 of 2012 ()

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CC 260/2007 of CHIEF JUDICIAL MAGISTRATE COURT,KOZHIKODE

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PETITIONER(S)/ACCUSED:

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SANJEEV KUMAR K.P. , AGED 41 YEARS S/O.LATE ASHOK KUMAR, KURIYATHU PUNAKKADA VALIYAMADAM HOUSE, P.O.CHIRAKKAL, KANNUR.

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BY ADV. SRI.P.M.HABEEB

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RESPONDENT(S)/COMPLAINANT & STATE:

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PUTHANPURAYIL ABDUL SALAM, S/O.MOIDEEN,AGED 50 YEARS ANCHARAKANDY P.O., ANCHARAKANDY AMSOM,

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KOLATHUMALA DESOM, THALASSERY TALUK, KANNUR DISTRICT-671001.

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STATE OF KERALA

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REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-31.

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R1 BY ADV. SRI.C.K.SREEJITH

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R2 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO.4000/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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ANNEXURE-A: THE CERTIFIED COPY OF THE COMPLAINT CC NO.260 OF 2007 DATED 25.10.2007

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RESPONDENTS' EXHIBITS: NIL

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//TRUE COPY//

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A.HARIPRASAD, J.

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Crl.M.C. No.4000 of 2012

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Dated this the 10^th day of July, 2014.

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ORDER

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Accused in C.C.No.260 of 2007 on the file of the Chief Judicial Magistrate Court, Kozhikode is before this Court praying to invoke the jurisdiction under Section 482 of the Code of Criminal Procedure (in short, “Cr.P.C.”) for quashing Annexure-A complaint. The offences alleged against the petitioner are punishable under Sections 406 and 420 of the Indian Penal Code (in short, “IPC”).

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2. Gist of the allegations is as follows:

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An agreement to assign immovable property was executed between the 1^st respondent/complainant and the petitioner/accused on 29.12.2005. Total value of the land was fixed at 29,63,500/-, out of which, 8,50,000/- was paid by the complainant to the accused on the date of the agreement itself. Balance amount was agreed to be paid subsequently. Six months was the time agreed by the parties for performance of the contract. Since the accused did not perform his part of the contract, the complainant caused to issue a lawyer notice. Accused sent a reply notice with untenable contentions. It was mentioned in the reply notice that a suit as O.S.No.64 of 2006 filed by a third party was pending before the Sub Court, Kozhikode and therein a prohibitory injunction order was passed

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Crl.MC No.4000/2012 2

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against alienation of the property by the petitioner/accused. According to the averments in the complaint, the accused, in collusion with another and with an intention to deceive and cheat the complainant, entered into another agreement in respect of the same property with a third party subsequent to the execution of the agreement between the accused and the complainant. The complainant, therefore, contended that the accused is guilty of the above said offences.

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Heard the learned counsel appearing for the petitioner/accused and the 1^st respondent/complainant.

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Learned counsel for the petitioner submitted that going by the averments, no offence is made out and, therefore, the prosecution is an abuse of the process of the court. From the narration of facts made above, it can be seen that the grievance of the complainant is that after executing an agreement to assign the property, the accused entered into another agreement with a third party in order to defeat his rights. 'Cheating' is defined in Section 415 IPC. It reads as follows:

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“ Cheating .-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and

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Crl.MC No.4000/2012

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which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

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Explanation.- A dishonest concealment of facts is a deception within the meaning of this section.”

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Illustration (g) to Section 415 IPC is relevant for our purpose, which is extracted hereunder:

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“ A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.”

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There is no averment in the complaint that the accused intended to cheat the complainant at the time of inception of the transaction. There is force in the submission made by the learned counsel for the petitioner/accused that the dispute is predominantly of a civil nature. It is an admitted fact that that the complainant had approached the civil court for redressal of his grievance against the accused by filing a suit for specific performance. In this conspectus, the decisions rendered by the Apex Court in Suresh

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Crl.MC No.4000/2012

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Yadav B. v. Sharifa Bee and another (2007 KHC 4127) and Paramjeet

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Batra v. State of Uttarakhand (2013 (1) KLT SN 15 - Case No.15) become relevant. It has been lucidly held that where a dispute, which is essentially of a civil nature, is given a cloak of criminal offence and a civil remedy is available, the High Court should not hesitate to quash the criminal prosecution by invoking Section 482 Cr.P.C. in order to prevent abuse of the process of court. This Court followed the said principle in Devadathan and others v. State of Kerala and another (2012 (1) KHC 723) as well.

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Section 406 deals with punishment for criminal breach of trust. No criminal breach of trust as defined under Section 405 IPC does arise in this case. Therefore, I find that the said offence is also not attracted.

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In the result, the petition is allowed. Annexure-A complaint pending in C.C.No.260 of 2007 before the Chief Judicial Magistrate Court, Kozhikode is hereby quashed.

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All pending interlocutory applications will stand dismissed.

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A. HARIPRASAD, JUDGE.

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cks

Sanjeev Kumar K.P. v. Puthanpurayil Abdul Salam

Case brief

What is this about?

What did the court decide?

Sanjeev Kumar K.P. v. Puthanpurayil Abdul Salam

Case brief

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