Quashed

A.C.Chummar v. Muthoot Bankers

Kerala HC3 Mar 2021Crl.MC/3244/2016

Case brief

AI extract

What is this about?

The High Court, Ernakulam, quashed a private complaint regarding alleged cheating under Sections 420, 422, 120B IPC. The Court held that selling mortgaged property does not constitute cheating and a breach of undertaking in a pending suit must be addressed in the same civil suit, not via a separate criminal complaint.

What did the court decide?

Complaint C.C.No.33/2016 before the Chief Judicial Magistrate, Thrissur, is quashed and Criminal Misc. Case is allowed.

A.C.Chummar Vs Muthoot Bankers — Cheque Dishonour | Kerala HC (2021)

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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 P.SOMARAJAN

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WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

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Crl.MC.No.3244 OF 2016(E)

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AGAINST THE ORDER/JUDGMENT IN CC 33/2016 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR

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PETITIONER/ACCUSED NO.1:

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A.C.CHUMMAR AGED 58 YEARS, S/O. AKKARA CHACKO, AKKARA HOUSE, OLLUR, THRISSUR.

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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 MUTHOOT BANKERS

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REGISTERED PARTNERSHIP FIRM, VENUS COMPLEX, WEST FORT, THRISSUR (REPRESENTED BY ITS POWER OF ATTORNEY SRI. P.C.VARGHESE, AGED 77 YEARS, S/O. CHIMMENS CHAKKUNNY, ARANATTUKARA, THRISSUR-680618).

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2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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R1 BY ADV. SRI.S.NIDHEESH R1.SRI.RAMESH CHAND, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.3244 OF 2016(E)

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ORDER

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Cognizances was taken for the offence under Sections 420, 422, 120B r/w Section 34 IPC on a private complaint, which is under challenge by the accused No.1.

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It is in connection with deposit of title

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deed by accused No.1 with the defacto complainant, Bank, for availing a loan facility on three occasions. An amount of

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Rs.25,00,000/- was availed on 27.07.2000 by

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creating an equitable mortgage on deposit of

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title deed and another amount of

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Rs.30,00,000/- also availed on 24.11.2000 by

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depositing the title deed of yet another property. An amount of Rs.10,00,000/- also availed on 25.03.2002 based on the deposit of

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title deed of a third property belonged to

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accused No.1. Since payment was defaulted, a

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civil suit was instituted for the recovery of the amount, wherein an affidavit was sworn by

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Crl.MC.No.3244 OF 2016(E)

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the defendant, the petitioner/accused No.1

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herein, that he will not alienate or transfer

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his right, title or interest over the

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property. But later on, in violation of the undertaking, he had sold one of the items of

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property to the accused Nos.3 and 4 on 04.04.2003. It is fairly conceded by the

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learned counsel for the first respondent that

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the undertaking was made subsequent to the said sale suppressing the factum of disposal

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of the said property. If there is any violation of the undertaking made before a competent court, it shall be proceeded in

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accordance with the law in the same court and

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not by a separate complaint. Further, the

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sale of immovable property during the

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subsistence of a mortgage with the Bank will

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not constitute any kind of offence either

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under Section 420 or 422 IPC. It is within the

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power and jurisdiction of the owner/title

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Crl.MC.No.3244 OF 2016(E)

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holder of the property to deal with the property in accordance with his whims and fancies. An existence of a mere mortgage or creation of a mortgage over the property will not take away the power of transfer vested with the owner/title holder. On the other hand, the mortgage right, if any, will stand go along with the land. The learned Magistrate overlooked all the accepted basic principles

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of the law governing application of Section 420 and 422 IPC and took cognizance without satisfying disclosure of commission of offence. Hence the complaint in C.C.No.33/2016 on the file of the Chief Judicial Magistrate Court, Thrissur is hereby quashed.

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The Crl.M.C. is allowed accordingly.

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Sd/-

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P.SOMARAJAN JUDGE

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SPV

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Crl.MC.No.3244 OF 2016(E)

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE I CERTIFIED COPY OF THE COMPLAINT FILED BY THE FIRST RESPONDENT WHICH IS NOW PENDING AS CC NO. 33/2016. ANNEXURE II COPY OF MORTGAGE DEED ALLEGEDLY EXECUTED BY THE PETITIONER WITH THE COMPANY.

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RESPONDENTS' EXHIBITS: NIL

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//TRUE COPY//

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PA TO JUDGE

A.C.Chummar v. Muthoot Bankers

Case brief

What is this about?

What did the court decide?

A.C.Chummar v. Muthoot Bankers

Case brief

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