The court quashed FIRs under Sec. 406 and 420 r/w Sec. 34 IPC against bank employees who sold property. It held that only the trust owner, not the husband of the purchaser's spouse, can file under Sec. 406, and civil remedies apply to extent reduction.
FIR, final report and its further proceedings under Sec. 406 and 420 r/w Sec. 34 of IPC are quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
Crl.MC.No.6589 OF 2015(A)
AGAINST THE ORDER/JUDGMENT IN CC 729/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOZHIKODE
PETITIONER/2nd ACCUSED:
SASIDHARAN K., AGED 65 YEARS, S/O.LATE C.GOVINDA KURUP,FLAT NO.1C,SREE PADMAM APARTMENTS-II,MARAT LANE,M.G.ROAD,THRISSUR-68001.
BY ADVS. SRI.K.N.SIVASANKARAN SMT.ARCHANA S. KUMAR SRI.SUNIL SHANKER
RESPONDENTS:
1 STATE OF KERALA, THROUGH INSPECTOR OF POLICE, TOWN CIRCLE,KOZHIKODE CITY,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.
*2 FRANCIS.M.D (CORRECTED) S/O.THOMAS,DONAM DEL,NELLIKKODE HOUSING COLONY,P.O.CHEVAYOOR,KOZHIKODE-673017.
*THE NAME OF THE 2ND RESPONDENT 'FRANCIS M.D.' OCCURRING IN THE CAUSE TITLE OF THE CRL.M.C.6589/15 IS CORRECTED AND SUBSTITUTED AS 'FRANCIS M.T.' AS PER ORDER DT.06/01/2016 IN CRL.M.A.120/2016 IN CRL.M.C.6589/15
PUBLIC PROSECUTOR SRI.E.C.BINEESH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.03.2021, ALONG WITH Crl.MC.838/2017(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.6589/2015, Crl.MC.838/2017 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
Crl.MC.No.838 OF 2017
AGAINST THE ORDER/JUDGMENT IN CC 729/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOZHIKODE
PETITIONER:
K.CHANDRAN, AGED 66 YEARS, S/O.P VELAYUDHAN, 7/3, NEW STREET, KONGUNAGAR, RAMANATHAPURAM, COIMBATORE-641045.
BY ADVS.
SRI.K.N.SIVASANKARAN
SRI.SUNIL SHANKER
RESPONDENTS:
1 STATE OF KERALA, THROUGH INSPECTOR OF POLICE, TOWN CIRCLE, KOZHIKODE CITY, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2 FRANCIS M.T, S/O.THOMAS, DONAM DEL, NELLIKKODE HOUSING COLONY, P.O CHEVAYOOR, KOZHIKODE 673017.
PUBLIC PROSECUTOR SRI.RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.03.2021, ALONG WITH Crl.MC.6589/2015(A), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.6589/2015, Crl.MC.838/2017 3
ORDER
The accused Nos.1 and 2 came up to quash the
FIR and the final report submitted on the allegation of offence under Sec. 406 and 420 r/w Sec. 34 of IPC and its further proceedings. Both
of them are Bank employees and now retired from the service. While they were holding the respective offices of the Bank, they sold 54 cents of property by initiating 'SARFAESI' proceedings and the wife of defacto complainant is the successful bidder. Later on it was found that there is reduction in extent and that earlier some portion was sold by
its owner. The successful bidder is the wife of
the defacto complainant and she never came up with any allegation for the offence under Sec. 406 and 420 IPC. An action under Sec.406 IPC can be
maintained only by the owner of the property in respect of which breach of trust has been committed
and in so far as Sec.420 IPC is concerned, it can
be by the person cheated. Hence, the husband
Crl.MC.6589/2015, Crl.MC.838/2017 4
cannot maintain an action either under Sec.406 or 420 IPC. Further, it will not disclose any offence under Sec. 406 and 420 IPC. If there is any reduction of extent the remedy lies somewhere else under the civil law, for which no criminal liability can be extended either under Sec. 406 or under Sec. 420 IPC. Hence, the FIR, final report and its further proceedings are hereby quashed.
Both the Crl.M.Cs. are allowed accordingly.
Sd/-
P.SOMARAJAN
JUDGE
msp
Crl.MC.6589/2015, Crl.MC.838/2017 5
APPENDIX OF Crl.MC 6589/2015
PETITIONER'S/S ANNEXURES:
| ANNEXURE A | TRUE COPY OF POSSESSION NOTICE PUBLSIHED IN MATHRUBHUMI,PALAKAD EDN.DATED 20-5-2006 |
|---|---|
| ANNEXURE B | TRUE COPY OF THE TENDER NOTICE PUBLISHED IN MATHRUBHUMI PALAKKAD EDN. DATED 23-1-2007 |
| ANNEXURE C | TRUE COPY OF THE SALE CERTIFICATE DATED 21- 11-2007 |
| ANNEXURE D | TRUE COPY OF DOCUMENT NO.516 OF 2010,TANUR SRO DATED 1-2-2010 |
| ANNEXURE E | TRUE COPY OF THE FINAL REPORT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT- I,KOZHIKODE IN CC.729 OF 2015 DATED 25-3- 2015. |
RESPONDENTS ANNEXURES:NIL
Crl.MC.6589/2015, Crl.MC.838/2017 6
APPENDIX OF Crl.MC 838/2017
PETITIONER'S/S ANNEXURES:
| ANNEXURE A | TRUE COPY OF POSSESSION NOTICE PUBLISHED IN MATHRUBHUMI, PALAKKAD EDN.DTD 20/5/2006 |
|---|---|
| ANNEXURE B | TRUE COPY OF THE TENDER NOTICE PUBLISHED IN MATHRUBHUMI PALAKKAD EDN. DTD 23/1/2007 |
| ANNEXURE C | TRUE COPY OF SALE CERTIFICATE DTD 21/11/2007 |
| ANNEXURE D | TRUE COPY OF DOCUMENT NO 516/2010 TANUR SRO DTD 1/2/2010 |
| ANNEXURE E | TRUE COPY OF FINAL REPORT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE IN CC.729 OF 2015 DTD 25/3/2015 |
| ANNEXURE F | TRUE COPY OF INTERIM STAY EXTENSION ORDER IN CRL.MC NO 6589/2015, HIGH COURT OF KERALA DTD 5/12/2016. |
//TRUE COPY//
PA. TO JUDGE
2 issues framed by the court
Whether an action for criminal breach of trust (Sec. 406 IPC) can be maintained by the husband of the defacto complainant.
Whether the alleged reduction in extent of property sold by banks disclosed an offence under Sec. 406 or 420 IPC.
1 provisions across 1 enactments
SASIDHARAN K.
K. CHANDRAN
STATE OF KERALA
FRANCIS M.T.
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
