Disposed

M. Shajideen v. State of Kerala

Kerala HC18 Mar 2014WA/326/2014

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the Writ Appeal seeking quashing of an FIR and directions for criminal investigation into stamp duty evasion and forgery. The Court held that while the FIR should remain in abeyance pending a pending enquiry, it could not quash it, nor could it direct criminal action or tax assessment in a private dispute without a specific demand.

What did the court decide?

The writ appeal is closed without any benefit to the appellant regarding the prayer to quash the FIR or direct investigation/tax assessment.

M. Shajideen Vs State of Kerala — Civil Procedure and Limitation | 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 K.M.JOSEPH

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 18TH DAY OF MARCH 2014/27TH PHALGUNA, 1935

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WA.No. 326 of 2014 IN WP(C).25993/2013

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AGAINST THE JUDGMENT IN WP(C) 25993/2013 of HIGH COURT OF KERALA

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APPELLANT(S)/PETITIONER:

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M. SHAJIDEEN, IST FLOOR, MARVEL MANSION, GOWREESAPATTOM PATTOM.P.O, THIRUVANANTHAPURAM.

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BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR

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RESPONDENT(S)/RESPONDENTS:

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STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM-695001.

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DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM-695001.

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COMMISSIONER OF POLICE, THIRUVANANTHAPURAM-695001.

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CIRCLE INSPECTOR OF POLICE, MEDICAL COLLEGE, THIRUVANANTHAPURAM-695001.

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SUB INSPECTOR OF POLICE, MEDICAL COLLEGE, THIRUVANANTHAPURAM-695001.

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MRS.SOBHA AJITH, PROPRIETRESS, SPACE DESIGNERS ENGINEERS & BUILDERS KOWDIAR, THIRUVANANTHAPURAM-695032.

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MR.AJITH KUMAR.S.R, GENERAL MANAGER SPACE DESIGNERS ENGINEERS & BUILDERS, KOWDIAR THIRUVANANTHAPURAM-695032.

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ASSISTANT COMMSSIONER OF POLICE, SHANMUGHAM, THIRUVANANTHAPURAM-695012.

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DISTRICT REGISTRAR, OFFICE OF THE DISTRICT REGISTRAR, IST FLOOR TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695023.

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SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, PATTOM THIRUVANANTHAPURAM-695032. R6 & R7 BY SRI.P.V.ANIL R1 TO 5 & 8 TO 10 BY SR. G.P.SRI SYAMKUMAN C.R.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON

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18/03/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. M. JOSEPH & A. K. JAYASANKARAN NAMBIAR, JJ.

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=.===================~=.=

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W. A. No.326 of 2014

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=.===================~=.= Dated this the 18^th day of March, 2014

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JUDGMENT

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K. M. JOSEPH, J.

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Appellant is the writ petitioner. The appellant has approached this Court with the following prayers:-

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i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P22 FIR and quash the same.

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ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3, to conduct a detailed and comprehensive investigation, into the shady deals entered, forgery of the power of attorney and using the same as genuine, filing false affidavit for getting the said power of attorney adjudicated by the RDO, evasion of exorbitant stamp duties, using the manipulated power of attorney, gross undervaluation of the property etc., by the respondents 6 and 7, in connivance with the

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WA 326/2014

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respondents 8 to 10, and take appropriate action against each of them.

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iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3, to assess the stamp duty, and penal charges leviable, evaded by the respondents 6 and 7, consequent on the execution and registration of sale deeds by them, in respect of their project called Marvel Mansions, with third parties, including the stamp duty leviable in pursuance of Ext.P27 agreement entered between the respondents 6 and 7 and Asok Kumar and Ambili Asok Kumar and direct realization of the same, with penal charges, for the willful concealment, suppression of material facts, forgery of documents etc.

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and

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iv) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition (Civil).

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Regarding the prayer for quashing Ext.P22 FIR,

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WA 326/2014

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contention of the appellant was that the complaint was filed by the 6^th respondent alleging certain offences against him and on the basis of the complaint, investigation was handed over to the 4^th respondent. The 4^th respondent did not register any FIR, instead he conducted enquiry in the matter. While he was away in Maharashtra in connection with some other investigation, as is evident from Ext.P23 communication received under the Right to Information Act, and using the influence of respondents 6 and 7, yet another police officer registered Ext.P22 FIR.

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The background of the case relating to Ext.P22 FIR, according to the appellant, in a nutshell is as follows:

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Appellant agreed to purchase three apartments from the 6^th respondent who is the wife of the 7^th respondent and an amount of Rs.1.2 crores was paid. However, there was inaction, which led to litigation. There was an attempt to assault the appellant by the 7^th respondent. The appellant filed a complaint against him. It is from there, according to the appellant, a false complaint is filed by the 6^th respondent

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WA 326/2014 4

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alleging molestation of the 6^th respondent by the appellant. On the basis of the complaint, the investigation was conducted by the 4^th respondent and, as already mentioned, in his absence Ext.P22 FIR was lodged.

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The learned Single Judge did not find it fit to quash Ext.P22 FIR. The learned Single Judge found that it could not be said that no cognizable offence was alleged and technically it was not possible to quash the FIR. But at the same time, the learned Single Judge held that since Ext.P22 FIR was lodged in the absence of the 4^th respondent who investigated the matter, Ext.P22 will be kept in abeyance till the enquiry is completed by the 4^th respondent.

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Regarding the contention raised by the learned counsel for the appellant relating to the judgment of the learned Single Judge refusing to quash Ext.P22 FIR, we are not at all convinced. As already noted FIR does disclose commission of a cognizable offence. Once on a complaint discloses commission of a cognizable offence, as held by the Supreme Court of India in Aleque Padamsee V. Union of

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WA 326/2014

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India, 2007(3) KLT 1028, police officials ought to register the FIR. But at the same time in view of the facts of this case the learned Single Judge has moulded the relief as he thought fit. We see no reason to entertain the plea that FIR should be quashed.

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In regard to the further prayers, which we have already extracted, what is prayed for is to direct respondents 1 to 3 to conduct a detailed and comprehensive investigation into the forgery and evasion of stamp duties by respondents 6 and 7. We see the investigation of the same is sought to be conducted by respondents 1 to 3. If a complaint is filed and no action is taken, it is not appropriate for a person to approach the writ court and to seek a direction to take criminal action. This position is brought to our notice by learned Government Pleader in a decision reported in 2007(3) KLT 1028 (Supra). We notice the argument of the learned Government Pleader that the person who filed the complaint in regard to the alleged fraud, forgery etc. has not chosen to think it fit to approach

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WA 326/2014

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this Court. The learned Government Pleader also points out that the petitioner himself has not made any demand justifying the issuance of a writ of mandamus.

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Learned counsel for the appellant submits that a complaint was lodged by the landlord and an FIR is also laid. But no further steps have been taken. There is loss to the State exchequer by way of loss of stamp duty, it is contended. The argument of the learned counsel for the appellant is that this petition can be treated as public interest litigation. We cannot ignore the fact that this is a case where the petitioner approached this Court for quashing Ext.P22. There are disputes between the appellant and respondents 6 and 7. No doubt, learned counsel for the appellant points out that it is ordinarily that the court will not direct criminal action to be taken in exercise of power under Article 226 of the Constitution. More importantly, the appellant has failed to point out any demand made by him seeking prayers (ii) and (iii). The only representation that could be pointed out is Ext.P3. Ext.P3 is in the year 2011

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and it does not relate to prayers (ii) and (iii). If that be so, it is clear that there is no demand at all made by the appellant seeking relief under Article 226 of the Constitution. Even though the matter was not considered by the learned Single Judge, we do not think it fit to grant such relief. Any person can set the criminal law in motion. Appellant, if so advised, can resort to the remedy in terms of the provisions in criminal law.

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Without prejudice to all the remedies available in law to the appellant, the appeal is closed.

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K. M. JOSEPH, JUDGE.

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A. K. JAYASANKARAN NAMBIAR, JUDGE.

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nkm.

M. Shajideen v. State of Kerala

Case brief

What is this about?

What did the court decide?

M. Shajideen v. State of Kerala

Case brief

What is this about?

What did the court decide?

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