Allowed

Sudhakaran v. State of Kerala

Kerala HC2 Jul 2019Crl.MC/724/2015

Case brief

AI extract

What is this about?

This court allowed a petition to quash criminal proceedings under Section 482 CrPC. The criminal charge of cheating alleged that the petitioners colluded to defraud the complainant regarding a property sale. The court quashed the proceedings, finding that the complainant's failure to approach civil court for an injunction against the property owner indicated the criminal allegations were false and

What did the court decide?

Quashed of proceedings in CC No. 1726 of 2014 and ancillary File No. 237 of 2014.

Sudhakaran Vs State of Kerala — Writ and Judicial Review | Kerala HC (2019)

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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 RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941

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Crl.MC.No.724 of 2015

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AGAINST THE ORDER/JUDGMENT IN CC 1726/2014 of JUDICIAL MAGISTRATE OF FIRST CLASS, ALATHUR

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PETITIONER/S:

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1 SUDHAKARAN, AGED 65 YEARS S/O.KOCU, KOLLAMPARAMBIL HOUSE, KOLAYAKKAD, MAJAPRA, ALATHUR, PALAKKAD DISTRICT

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2 PRAMOD, AGED 35 YEARS, S/O.SUDHAKARAN, KOLLAMPARAMBIL HOUSE, KOLAYAKKAD, MAJAPRA, ALATHUR, PALAKKAD DISTRICT

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BY ADVS. SRI.ABDUL JAWAD K. SMT.VINEETHA V.KUMAR SRI.MATHEW A KUZHALANADAN SRI.U.MUHAMMED MUSTHAFA

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 KANNAN, S/O.MUTHU, THONIPPALLAM, PALANKARA, MANJAPRA, ALATHUR, PALAKKAD-678 001. BY ADVS. SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SRI.T.SETHUMADHAVAN (SR.)

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OTHER PRESENT:

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SMT. M.K.PUSHPALATHA, SR. PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.724 of 2015

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ORDER

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The proceedings in CC No. 1726 of 2014 on the file of the Judicial First Class Magistrate Court, Alathur are sought to be quashed in this petition under Section 482 of the Cr.P.C.

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The petitioners herein are father and son respectively. The daughter of the 1^st petitioner, who is in the United States, is the owner of an item of property having an extent of ten cents. According to the de facto complainant, on 07.12.2012, the 1^st petitioner, claiming that he was authorized to assign the said property, entered into an agreement for sale with him. A sum of Rs.6 lakhs was allegedly received by the 1^st petitioner by way of advance. The 1^st petitioner agreed to execute and register the sale deed on or before 30.06.2014, by which time, his daughter was expected to come back from the United States. Alleging that the 1^st petitioner was not authorised to assign the property and that he had entered into an agreement with intent to cheat him in pursuance of a conspiracy hatched between him and the 2^nd petitioner, a complaint was lodged and the crime was registered.

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Heard Sri.K.Abdul Jawad, the learned counsel

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Crl.MC.No.724 of 2015

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appearing for the petitioners, and Sri. Jayesh Mohankumar, the learned counsel appearing for the 2^nd respondent.

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I have considered the submissions advanced and have gone through the materials.

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The crux of the prosecution allegation is that on 7.12.2012, the 1^st petitioner herein entered into an agreement with the de facto complainant and agreed to assign an item of property having an extent of 10 cents owned by his daughter by inducing the de facto complainant to believe that he is authorized to do so. The de facto complainant further alleges that he had given a sum of Rs.6 lakhs to to the 1^st petitioner and the possession of the property was handed over to him. The time fixed for executing and registering the sale deed was on or before 30.6.2014. Admittedly, the sale deed was not executed or registered. The de facto complainant has no case that he had instituted a suit for return of the advance amount or for specific performance. At the same time, it is borne out from Annexure D that in the year 2013, the 2^nd petitioner, as authorized by his sister, instituted O.S No. 301 of 2013 before the Munsiff's Court, Alathur seeking a decree of permanent prohibitory injunction

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Crl.MC.No.724 of 2015

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restraining the de facto complainant from trespassing into the property. The suit was decreed ex parte, on 21.03.2016, as is evident from the judgment of the Court of Munsiff, Alathur. The 2^nd respondent was restrained by an order of permanent prohibitory injunction from trespassing into the property or from obstructing the peaceful possession of the plaint schedule property by the plaintiff. The de facto complainant has no explanation as to why he did not contest the suit or the reason for not approaching the civil court for appropriate reliefs. In this context, the assertion of the petitioners assumes great importance. They contend that no such agreement as alleged was executed and no amount was paid as alleged by the 2^nd respondent. The omission on the part of the de facto complaint to institute a suit lends credence to the submission of the learned counsel appearing for the petitioners that the allegations in the complaint are false and cooked up. If, in fact, the agreement was genuine and if the amount was paid as alleged, the de facto complainant would certainly have approached the jurisdictional civil court for appropriate reliefs, particularly when the owner of the property approached the civil court and had obtained an order

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Crl.MC.No.724 of 2015

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of injunction. Having considered the sequnce of events, I am inclined to hold that allowing the proceeding to continue would be an abuse of the process of the Court and that the ends of justice require that the proceeding ought to be quashed. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.

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In the result, this petition is allowed. Annexure A final report and all further proceedings pursuant thereto against the petitioner now pending as CC No. 1726 of 2014 on the file of the Judicial First Class Magistrate Court, Alathur are quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN V., JUDGE

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Bka/

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Crl.MC.No.724 of 2015

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A CERTIFIED COPY OF FINAL REPORT IN SC 237/2014.

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ANNEXURE B TRUE COPY OF THE FIR DATED 6/3/2014.

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ANNEXURE C TRUE COPY OF THE PRIVATE COMPLAINT FILED BEFORE THE JFCMC, ALATHUR.

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ANNEXURE D TRUE COPY OF THE PLAINT IN OS NO.301/2013 ON THE FILE OF MUNSIFF'S COURT, ALATHUR.

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ANNEXURE E TRUE COPY OF THE DOCUMENT SHOWING COMMUNICATION OF THE INJUNCTION ORDER

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ANNEXURE F TRUE COPY OF THE SEIZURE MAHAZAR DATED 13/4/2013.

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ANNEXURE G TRUE COPY OF THE AGREEMENT DATED 7/12/2012.

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ANNEXURE H TRUE COPY OF THE WRITTEN STATEMENT DATED 5/1/2015 FILED BY THE DEFACTO COMPLAINANT IN OS 301/2013.

Sudhakaran v. State of Kerala

Case brief

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What did the court decide?

Sudhakaran v. State of Kerala

Case brief

What is this about?

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