Quashed

Thankamma v. State of Kerala

Kerala HC12 Nov 2020Crl.MC/5959/2016

Case brief

AI extract

What is this about?

The Kerala High Court quashed criminal proceedings against petitioners in a cheating case. The court held that the private complaint was a counter-blast to a civil suit filed by the lender and factually inconsistent, constituting an abuse of process.

What did the court decide?

The impugned private criminal complaint (Annexure III) and all consequential proceedings under C.C.No.852/2014 are quashed and set aside.

Thankamma Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2020)

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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 ALEXANDER THOMAS

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THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942

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Crl.MC.No.5959 OF 2016

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CC 852/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG

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PETITIONERS/ACCUSED:

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1 THANKAMMA

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AGED 58 YEARS, W/O. PEETUS @ PETER JOSEPH,NAMBIAPARAMBIL HOUSE, VANNAPPURAM, VANNAPPURAM PO., THODUPUZHA TALUK

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2 PEETUS @ PETER JOSEPH AGED 66 YEARS, S/O. JOSEPH,NAMBIAPARAMBHIL HOUSE,VANNAPPURAM, VANNAPPURAM PO., THODUPUZHA TALUK

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BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY

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RESPONDENTS/STATE/COMPLAINANT:

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1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.1133/2014 OF THRISSUR TOWN WEST POLICE STATION, THRISSUR DISTRICT

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2 LEELAMMA MATHEW W/O. MATHEW, ARAKKAL HOUSE,P.O. CHAYYOTH, KINANOOR VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT.

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BY ADVS. SRI.THOMAS J.ANAKKALLUNKAL SRI.B.JAYASURYA, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C No.5959 of 2016

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ALEXANDER THOMAS, J.

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Crl.M.C No.5959 of 2016

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Dated this the 12^th day of November, 2020

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O R D E R

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The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 Cr.PC is as follows:

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“………to quash all further proceedings in C.C No.852/2014 pending on the file of the Judicial Magistrate of First Class, Hosdurg, as it is an abuse of process of court.”

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The 1^st petitioner herein (A1) is the wife of the 2^nd petitioner herein (A2) and the 2^nd respondent herein (complainant) is the elder sister of 1^st petitioner (A1). The petitioners herein have been arrayed

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as accused 1 & 2 among the two accused in the impugned Anx.III private criminal complaint dated 03-03-2014 filed by the 2^nd respondent herein before the Judicial First Class Magistrate Court-II, Hosdurg, Kasaragod District, it has been filed alleging that the petitioners herein (accused therein) have committed the offences punishable as per Sec.420 of IPC (cheating).

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The learned Magistrate has taken cognizance of the offence alleged in Anx.III private criminal complaint, as can be seen from internal page 5 of Anx.III on 02-6-2014 and has issued summons to

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Crl.M.C No.5959 of 2016

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the petitioners. The petitioners would contend that the abovesaid initiation of the Anx.III private criminal complaint proceedings, which has now resulted in Calendar Case, C.C No.852/2014 on the file of Judicial First Class Magistrate Court-II, Hosdurg, Kasaragod District, is a grave abuse of the process of court and that no offence as per Sec.420 of the IPC is disclosed therein.

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The petitioners would point out that the truth of the matter is the other way round and that moneys were actually owed by the 2^nd respondent herein to the 2^nd petitioner, as he had lent money to her as she happens to be his wife’s elder sister. That the 2^nd petitioner had advanced money to the 2^nd respondent and her husband on three occasions and she had paid back only part of such money to the 2^nd petitioner and outstanding balance to be paid by the 2^nd respondent to the 2^nd petitioner as on January, 2013 was Rs.3 Lakhs along with interest thereon from the due date. Despite many request the 2^nd respondent was not paying back the said money and hence the petitioners was constrained to issue a lawyer notice as per Anx.I dated 19-01-2013 to the 2^nd respondent, stating about the moneys advanced to her since 11-03-2011 and about the outstanding amount

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Crl.M.C No.5959 of 2016

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of Rs.3 Lakhs to be still repaid by her along with interest thereon and calling upon her to immediately pay back the said amount and that failing which, the 2^nd petitioner will be constrained to initiate appropriate proceedings in that regard. That in reply to Anx.I Lawyer notice dated 19-01-2013 sent by the 2^nd petitioner, the 2^nd respondent had forced to issue Anx.II reply Lawyer notice dated 2801-2013 to the 2^nd petitioner, asserting that no financial transactions whatsoever has existed between the parties and the allegation that the 2^nd respondent owes an amount of Rs.3 Lakhs to the 2^nd petitioner is absolutely unfounded and factually wrong and that the 2^nd petitioner should desist from initiating any proceedings as notified in Anx.I lawyer notice.

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In view of the said stand taken by the 2^nd respondent in Anx.II, the 2^nd petitioner was constrained to file a Civil Suit as O.S No.34/2013 before the Sub court, in which he was the plaintiff and R2 herein and her husband were the defendants therein and the said suit has been filed in February, 2013, praying for recovery of an amount of Rs.3 Lakhs. That in the said suit filed in February, 2013, notice was duly served on the defendants and that R2 herein had field

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the written statement and both the defendants therein including R2 herein have not raised any case in their written statement field before

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the Civil Court about any moneys actually owed to R2 by the petitioners herein. Further that the defendants therein including R2 herein had not field any counter claim in the said suit filed by the 2^nd petitioner seeking for any return of money. Further pointed out that the said O.S No.34/2013 was dismissed as per judgment and decree rendered by the Sub Court, Thodupuzha on 21-01-2015 and the 2^nd petitioner has challenged the same and which is now pending in regular first appeal on the file of this Court.

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Further it is pointed out that after the filing of the abovesaid Civil Suit by the 2^nd petitioner as a counter blast of the same the 2^nd respondent has filed the instant impugned Anx.III private criminal complaint dated 03-03-2014, alleging that the petitioners had promised to the 2^nd respondent that a attractive property is available in the nearby locality and that the said property could be purchased in the joint names of all three of them and that the 2^nd respondent

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may contribute her share in that regard and believing the said assurance of the petitioners, the 2^nd respondent has handed over an

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amount of Rs.5 Lakhs to the petitioners on 25-10-2012 and 27-11-2012 and thereafter no property was purchased by the petitioners and nor was the money returned back by the petitioners to the 2^nd respondent and that thereby they have committed the abovesaid offence under Sec.420 of the IPC, etc.

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The learned counsel for the petitioners would point out that if as a matter of fact, there was even a remote grain of truth in the allegations made by R2 in Anx.III private criminal complaint filed on 03-03-2014, in respect of the moneys said to have been received by the petitioners from 2^nd respondent on 25-10-2012 and 27-11-2012, then certainly the 2^nd respondent would have immediately taken such a factual stand in the written statement filed by her in O.S No.34/2013 and would have also filed a counter claim in the said suit filed by the 2^nd petitioner and on the other hand, no such case has been even remotely whispered in the pleadings filed by R2 herein in O.S No.34/2013 nor has been filed any counter claim in the said suit filed by the petitioners. Further that Anx.III private criminal complaint has been field belatedly on 03-03-2014 after period of two years after the alleged handing over of money and further that the

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said compliant has also been filed long after the issuance of Anx.I Lawyer notice and Anx.II reply notice as well as after the filing of the abovesaid Civil Suit. Further that if actually there was any grain of truth in the allegations in Anx.III, then certainly R2 would have raised that in Anx.II reply Lawyer notice sent on 28-01-2013. That no mention has been made by R2 in Anx.II reply notice and on the other hand, she would take the clear stand in Anx.II that no financial transactions whatsoever has existed between the parties. Hence, the petitioner’s counsel would point out that the allegations raised in Anx.III are totally false and has made only as a counter blast to the Civil Suit filed by the 2^nd petitioner and it is an abuse of process of court.

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Further it is pointed out that even going by the admitted allegations raised by the 2^nd respondent in Anx.III private criminal complaint, there is no allegation that the accused persons with the dishonest intention right from the commencement of alleged transaction has induced the complainant to part with the money, etc.

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After going through the facts of the case and materials

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produced in this case, it can be seen that no such allegations has raised in Anx.III and has even been remotely disclosed by the 2^nd respondent in Anx.II reply notice sent on 28-01-2013 and on the other hand, R2 would strongly take the stand that no financial transactions whatsoever has existed between them. If the allegations in Anx.III were correct, then certainly the 2^nd respondent would have raised such a factual plea in the Civil Suit filed by the 2^nd respondent and in all probability would have also filed a counter claim in tune with the case set up in Anx.III. The fact that no such pleadings or counter claim has been set up by R2 in the said Civil Suit filed by the 2^nd petitioner would also strongly point to the aspects that the impugned compliant would have been only a counter blast to the abovesaid Anx.I Lawyer notice sent to the petitioner and the subsequent filing of the civil suit in February, 2013. Further there are no allegations in the impugned Anx.III private criminal complaint to show that right from the commencement of the transaction the petitioners had the dishonest intention and that thereby they have induced the 2^nd respondent to part with the money etc,. On the other hand, there is only a bald assertion in Anx.III complaint that by

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making the fraudulent and dishonest representation, the accused induced the complainant, etc. There are no factual material particulars are given in the complaint to constitute the substantial basis for making out a case of fraudulent and dishonest representation said to have been made by the accused persons and that the accused persons had such dishonest intention right from the commencement of transaction etc. Moreover, there is not even a whisper anywhere in Anx.III private criminal compliant about the matters in relation to Anxs.I, II and the Civil Suit. All the more so, the 2^nd respondent has taken the clear stand in Anx.II that no financial transactions whatsoever has existed between the parties. It is now appraised to this Court that the charges have not so far been framed in this case.

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In the light of all these aspects, this Court is constrained to take the view that the initiation and continuance of the impugned criminal proceedings at Anx.III is an abuse of the process of court and it is liable for interdiction at the hands of this court by exercise of the inherent power conferred under Sec.482 of Cr.PC. Accordingly, it is ordered that the impugned Anx.III private criminal complaint,

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Crl.M.C No.5959 of 2016

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which has now led to the pendency of Calendar Case, C.C No.852/2014 on the file of the Judicial First Class Magistrate CourtII, Hosdurg, Kasaragod District as against the petitioner/accused and all consequential proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside.

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The petitioner will produce a certified copy of this order before the Judicial First Magistrate Court-II, Hosdurg, who has dealt with C.C No.852/2014, for necessary information.

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With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of.

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H/O

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Sd/-

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ALEXANDER THOMAS, JUDGE

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KAS

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Crl.M.C No.5959 of 2016

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE I TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND PETITIONER DATED 19.01.2013

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ANNEXURE II: TRUE COPY OF THE REPLY NOTICE ISSUED ON BEHALF OF THE 2ND RESPONDENT`

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ANNEXURE III: CERTIFIED COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JFCM-11, HOSDURG, PENDING AS CCNO.852/14

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ANNEXURE IV; TRUE COPY OF THE APPOINTMENT SLIP OF RCC AND THE MEDICAL CERTIFICATE OF DOCTOR

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ANNEXURE V: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED IN FAVOUR OF THE FIRST PETITIONER

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RESPONDENT'S/S EXHIBITS: NIL

Thankamma v. State of Kerala

Case brief

What is this about?

What did the court decide?

Thankamma v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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