Dismissed

Dominic Joseph @ Josch Joseph v. State of Kerala

Kerala HC21 Jun 2019Crl.MC/856/2019

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a petition seeking to quash criminal proceedings for cheating, holding that the sole submission of a civil dispute is insufficient to quash the case, which involves disputed questions of fact beyond Section 482 CrPC.

What did the court decide?

No order for quashing; petitioner ordered to cooperate with investigation and appear before the investigating officer under modified bail conditions.

Dominic Joseph @ Josch Joseph Vs State of Kerala — Cheating and Forgery | 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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FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941

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Crl.MC.No.856 of 2019

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AGAINST THE ORDER/JUDGMENT IN CRMC 645/2018 OF DISTRICT COURT& SESSIONS COURT, MANJERI DATED 30-06-2018

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CRIME NO.143/2018 OF KARUVARAKUNDU POLICE STATION, MALAPPURAM

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PETITIONER/S:

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DOMINIC JOSEPH @ JOSCH JOSEPH, AGED 59 YEARS, S/O.M D JOSEPH, NOW RESIDING AT MANNIPARAMBIL HOUSE, PALAMPRA.P.O., KANJIRAPPALLY, KOTTAYAM, PIN-686518.

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BY ADVS. SRI.JOY GEORGE SMT.PRAICY JOSEPH SMT.TANYA JOY SRI.VINO JOSE

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.

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2 THE SUB INSPECTOR OF POLICE, KARUVARAKUNDU POLICE STATION, KARUVARAKUNDU, MALAPPURAM DISTRICT, PIN-676523.

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3 HAMSA C T., AGED 57 YEARS, S/O.MIUHAMMED, CHERATTUTHOTTY HOUSE, KARUVAMBRAM.P.O., MANJERI, MALAPPURAM DISTRICT, PIN-676123.

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BY ADVS. SRI.P.VENUGOPAL (1086/92) SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER

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OTHER PRESENT:

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SRI M SBREEZ SR PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.856 of 2019

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ORDER

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The petitioner herein is the 1^st accused in Crime No. 143 of 2018 of Karuvarakundu Police Station registered under Sections 420 & 506 r/w Section 34 of the IPC.

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The prosecution allegation is that the petitioner along with the rest of the accused approached the de facto complainant and induced him to believe that they are having the authority to assign a rubber plantation having an extent of 203 acres and by such inducement, persuaded the de facto complainant to part with a sum of Rs.8,40,000/- on the strength of an agreement for sale. Later, when the de facto complainant realised that he had been defrauded, he set the law in motion.

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The petitioner has approached this Court seeking to quash the proceedings. According to the learned counsel, the dispute is purely civil in nature and in that view of the matter, the continuance of criminal proceedings is an abuse of process.

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Heard the learned counsel appearing for the

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Crl.MC.No.856 of 2019

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petitioner, the learned counsel appearing for the 3^rd respondent and the learned Public Prosecutor.

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I have considered the allegations in the complaint and also the submissions advanced. Terminating criminal proceedings at the threshold itself or at the stage of FIR is to be exercised only in the rarest of rare cases and with great circumspection. The Apex Court in a catena of decisions, consistently have given a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. It has been held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice.

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6. In R. Kalyani v. Janak C. Mehta and Others

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[2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in

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Crl.MC.No.856 of 2019

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exercise of powers under Section 482 of the Code will be

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justified in quashing the FIR. In paragraph Nos. 14 and 15, it was held as follows:

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However, Dr. Monica Kumar and Another v. State of U.P. and Others 2008 (9) SCC p.798, para 36, held :

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"36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage."

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Propositions of law which emerge from the said decisions are :

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(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

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(2) For the said purpose, the Court, save

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Crl.MC.No.856 of 2019

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and except in very exceptional circumstances, would not look to any document relied upon by the defence.

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(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

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(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.”

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Same view was taken in Kurukshetra University v. State of Haryana [1977 (4) SCC 451], and in Som Mittal V Government of Karnataka [2008 (3) SCC 574].

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In the case on hand, the specific case of the

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prosecution is that the petitioner claiming rights over an item of property entered into an agreement for sale and received advance amount. After having bestowed my anxious considerations to the submissions and contentions and after having tested them in the light of the binding and illuminating precedents of the Apex Court, I am of the view that the petitioner herein has failed to make out a case for quashing

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Crl.MC.No.856 of 2019

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the criminal proceedings at the threshold itself. The submissions made at the Bar relate to disputed questions of fact which cannot be adjudicated by this Court under Section 482 of the Code of Criminal Procedure.

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It appears that the petitioner has been granted an order of pre-arrest bail by the Court of Session by order dated 19.1.2019. The petitioner shall co-operate with the investigation and shall appear before the investigating officer as and when his presence is required. The condition No.(3) of the order dated 19.1.2019 requiring the petitioner to appear before the investigating officer on every Mondays will stand modified.

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This Crl.M.C. stands disposed of accordingly.

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Sd/-

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RAJA VIJAYARAGHAVAN V., JUDGE

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Bka/22.09.2019

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Crl.MC.No.856 of 2019

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