Quashed

Tittu Kissan v. State of Kerala

Kerala HC15 Mar 2022Crl.MC/2967/2019

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings against two accused (accused Nos. 2 and 3) in a cheating case. Finding the dispute civil in nature and the parties had reached an amicable settlement, the court held that further prosecution was an abuse of process.

What did the court decide?

Quashing of the entire further proceedings against the petitioners/accused No.2 and 3 in C.C.No.1564/2018.

Tittu Kissan Vs State of Kerala — Quashing and FIR | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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TUESDAY, THE 15^TH DAY OF MARCH 2022 / 24TH PHALGUNA, 1943

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CRL.MC NO. 2967 OF 2019

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IN CRIME NO.357/2018 OF KARIMANOOR POLICE STATION WHICH IS NOW PENDING AS CC 1564/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS, THODUPUZHA

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PETITIONERS/ACCUSED NO.2 & 3:

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1 TITTU KISSAN AGED 42 YEARS S/O. KISAN, RESIDING AT RAMAPURATH HOUSE, VAHZAKKULAM KARAYIL, MANJALLOOR VILLAGE, ERNAKULAM RURAL, KERALA. 2 BINDU, AGED 41 YEARS W/O. TITTU KISSNA, RESIDING AT RAMAPURATH HOUSE, VAHZAKKULAM KARAYIL, MANJALLOOR VILLAGE, ERNAKULAM RURAL, KERALA. BY ADVS. RANJITH XAVIER SRI.TITTO THOMAS

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RESPONDENTS/COMPLAINANTS:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 CHANDRAKALA T.K., AGED 45 YEARS D/O. KUTTAPPAN, THANDEL HOUSE, AMAYAPRA VILLAGE, THODUPUZHA, TALUK, KARIMANNOOR, IDUKKI, KERALA. BY ADVS. SRI.GEORGE MATHEW SHRI.PRAVEEN S. SRI.M.D.SASIKUMARAN SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES

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Crl.M.C.No.2967/2019

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SHRI.MATHEW K.T. SHRI.GEORGE K.V. PP SMT.SHINYMOL V.O

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.10.2021, THE COURT ON 15.03.2022 PASSED THE

FOLLOWING:

Crl.M.C.No.2967/2019

M.R.ANITHA, J ******************

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Crl.M.C.No.2967 of 2019

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Dated this the 15^th day of March, 2022

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O R D E R

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This Crl.M.C has been filed seeking to quash the entire further proceedings against the petitioners in C.C.No.1564/2018

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on the file of the Judicial First Class Magistrate Court, Thodupuzha, which arise out of Crime No.357/2018 of Karimannoor police station.

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Petitioners are accused No.2 and 3 in Crime No.357/2018. They are husband and wife. First accused is a retired High School teacher. 2^nd respondent is the de facto complainant who preferred C.M.P.No.4190/2018 before Judicial First Class Magistrate Court, Thodupuzha, based upon which Crime No.357/2018 was registered under Sections 420, 423, 120B and 34 I.P.C against the petitioners as well as the first accused. After investigation final report was filed.

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Crl.M.C.No.2967/2019

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Prosecution case is that, the first accused, along with the petitioners/accused Nos.2 and 3 conspired to cheat the de facto complainant residing abroad and her mother Thankamma to cause unjust loss to the de facto complainant and her mother and to make unlawful enrichment to the petitioners and made the de facto complainant and her mother believe that the petitioners are residing abroad and entrusted the first accused to sell 3.09 acres of landed property owned and possessed by the petitioners/accused 2 and 3 and to have money transactions. The first accused offered to exchange 3.09 acres of landed property owned by petitioners/Accused 2 and 3 (hereinafter be referred as 'petitioners') and 8.5 cents of landed property owned by the de facto complainant's mother and an agreement was entered into on 20.08.2014 between the first accused and de facto complainant's mother. It is alleged that as per the terms of the exchange agreement, mother of the de facto complainant paid Rs.21,50,000/- towards the price difference in exchange to the first accused. Out of which, Rs.2,00,000/- was paid by the

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de facto complainant's mother as the first instalment and later balance amount of Rs.18,50,000/- was paid by her on several dates. As instructed by the first accused, de facto complainant's mother transferred her 8.5 cents of land with a house therein worth Rs.37,50,000/- to one Mr.Jinesh Mathew, the son-in-law of the 1^st accused on 06.03.2015, but inspite of repeated demands, petitioners did not sell their 3.09 Acres of land to de facto complainant's mother. Neither did they return Rs.59,00,000/which is inclusive of Rs.21,50,000/- paid by her in cash and Rs.37,50,000/-, that is, the value of the land and house which she sold to Mr.Jinesh Mathew. Thereby accused deceived and cheated the de facto complainant and her mother and acted in furtherance of their common intention.

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Notice was issued to the respondents. 1^st respondent appeared through learned Public Prosecutor and filed report along with copy of the signed statements of the de facto complainant. Adv.S.Praveen appeared for second respondent/de facto complainant.

Crl.M.C.No.2967/2019

5. Heard both sides.

According to the learned counsel for the petitioners,

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they are totally innocent and they were at abroad when all these transactions were done by the 1^st accused. The petitioners have been working as Nurse for the last 16 years in U.K. The petitioners purchased 0.39 Acres of land by virtue of two sale deed Nos.3279/2011 and 3301/2011 of SRO Thodupuzha and they entered into an agreement with Mr.Cyriac P.K @ Joy, the first accused who agreed to sell the property of the petitioners for a total consideration of Rs.55,00,000/-. Period of performance as per that agreement was on 13.02.2015. The first accused was known to the petitioners as a retired High School teacher. Petitioners received Rs.10,00,000/- as advance from the first accused but even after 13.02.2015, the first accused kept on seeking more time to fulfill his part of the agreement. The petitioners believed him considering his status and credibility as High School teacher. On 18.04.2016 when the petitioners came on leave, some of the relatives of the de facto complainant came

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to their house along with first accused and they told the first petitioner that first accused entered into a sale agreement with Thankamma, the mother of the de facto complainant on 20.08.2014 in furtherance of the petitioner's agreement and first accused received an amount of Rs.21,00,000/- from the mother of the de facto complainant. That agreement is produced as Annexure-IV, as per which the first accused executed a possessory sale deed selling possession of the petitioners property to the de facto complainant's mother. They also handed over copies of the agreement dated 20.08.2014 and possessory sale deed to the first petitioner on 27.05.2015. Copy of the possessory sale deed is produced as Annexure-V.

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In pursuance of Annexure A4 agreement, de facto complainant's mother sold the landed property with residential house to the son-in-law of the first respondent Mr.Dinesh Mathew as per sale deed No.599/15. But the petitioners have no knowledge of all these transactions made by the first accused with the de facto complainant's mother and the de facto

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complainant pressurized the first petitioner to enter into tripartite agreement with them and the first accused to ensure that the petitioners will sell the property to Thankamma, the mother of the de facto complainant alone. The first petitioner expressed his willingness to sell the property to Thankamma on receiving the balance sale consideration. But the first accused expressed his inability to pay the entire balance sale consideration to the petitioners. However, after mutual negotiations and discussions, the 1^st accused agreed to pay Rs.33,00,000/- by the end of July, 2016 and he also agreed to issue a cheque for Rs.33,00,000/- in favour of the petitioners as security. The relatives of the de facto complainant insisted that the first accused shall issue a cheque for Rs.59,00,000/- in favour of the de facto complainant towards security of Rs.59,00,000/- which the first accused received from the de facto complainant and the first petitioner was insisted by the relatives of the de facto complainant to agree their proposals. Since the petitioners had to return to U.K immediately and they did not want to entangle into any sort of litigation which would

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hinder their journey back to U.K., they agreed to the proposals inspite of financial loss. Accordingly, tripartite agreement, copy of which is produced as Annexure-A6 was executed.

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Even though it is stated in Annexure-A6 that the first accused handed over cheque to the first petitioner at the time of signing the agreement, actually he did not bring the cheque book and promised to hand over the cheque within two days. Thereafter, the first petitioner did not hand over the cheque, as agreed. When their leave was over, the petitioners returned to U.K. In the meantime, de facto complainant's mother died and

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the de facto complainant and her brothers filed O.S.No.23/2017 for declaration of title with respect to 8.5 cents stated above and consequential reliefs against Mr.Jinesh Mathew who purchased the property. The subsequent purchaser Mrs.Mary George, the first accused herein as well as the petitioners were arrayed as parties in the suit. True copy of the plaint is produced as Annexure-A7 which was dismissed on 28.03.2018 for nonpayment of balance court fee and the true copy of that order is

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produced as Annexure-A8. It is stated in Annexure-A1 complaint that mother of the de facto complainant sold the land to Jinesh Mathew without receiving any sale consideration as directed by the first accused. Copy of the sale deed No.599/2015 is produced as Annexure-A9 which would show that the de facto complainant's mother received the sale consideration for that sale. Annexure-A4 agreement was executed by the first accused in his personal capacity and not on behalf of the petitioners and there is nothing in Annexure-A4 agreement or Annexure-A5 sale deed to prove any involvement of the petitioners in the transaction between first accused and the mother of the de facto complainant. 1^st accused posed before the mother of the de facto complainant as the original owner of the petitioner's property. It is based on the representations made by the first accused that the mother of the de facto complainant entered into Annexure-A4 agreement. Those documents also would not reveal that Annexure-A4 agreement was executed based on any representation made by the petitioners. There is no stipulation in

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Annexure-A4 agreement about granting any authority by the petitioners to the first accused to enter into such agreement on their behalf as alleged in the present complaint filed by the de facto complainant. So, the petitioners are not in any way involved in the transaction between the first accused and the mother of the de facto complainant. Petitioners also have not received any part of balance sale consideration mentioned in Annexure-A6 agreement. It is also contended that they are ready and willing to sell their property to the de facto complainant provided they get balance sale consideration of Rs.33,00,000/- as per Annexure-A6 agreement. So, according to the petitioners, they are totally unaware of the transaction between the first accused and de facto complainant and her mother. According to the petitioners, the dispute between the parties are purely civil in nature and the entire proceedings based on Annexure-A3 final report and further proceedings against the petitioners is an abuse of process of court. Hence they seek for quashing entire proceedings against the petitioners based on the false complaint

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made by the de facto complainant.

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When the case came up for hearing, the learned counsel for the de facto complainant Adv.S.Praveen would submit that an affidavit has been filed by the second respondent/de facto complainant to the effect that all disputes between her and the petitioners herein, that is accused Nos.2 and 3 in the above crime, have been fully settled amicably out of court and they are in cordial terms. There is no subsisting grievance against the petitioners and it is also stated that the dispute between them are purely private in nature and no public interest is involved and it is further stated that the complaint is happened to be filed only out of misunderstanding. So, second respondent has no objection in quashing the entire proceedings against the petitioners in C.C.No.1564/2018 on the file of the Judicial First Class Magistrate Court, Thodupuzha.

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Learned Public Prosecutor produced the report of Inspector of Police, Karimannoor police station along with copy of the signed statement of the de facto complainant. In the report

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filed by the Station House Officer, it has been stated that the dispute between the parties have been settled and the second respondent/de facto complainant has obtained property. In the copy of the signed statement of the de facto complainant, it is categorically stated that she arrived at a settlement with the first petitioner and as per that arrangement, she obtained the property. Hence she do not want to proceed against the petitioners/Accused 2 and 3. Learned counsel for the de facto complainant also categorically stated that the matter has been amicably settled with the petitioners and there is no further grievance against the petitioners.

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Since the issues between the parties appear to be civil in nature and parties have settled the issues, continuation of the proceedings against the petitioners would be a sheer waste of valuable time of court [See Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)] and Madan Mohan Abbot v. State of Punjab [2008 (3) KLT 19 (SC)] .

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So also, though a civil suit was filed by the de facto complainant and other siblings against the petitioners and others, that suit was happened to be dismissed for default as borne out from Annexure-A8. Annexure-A4 agreement executed between the first accused and the mother of the de facto complainant also would reveal that it only states that the first accused obtained the property as per agreement from the petitioners herein and accordingly it was in the possession of the first accused. Hence Annexure-A4 agreement itself would make it clear that the petitioners were nowhere in the picture when the agreement was executed between the mother of the de facto complainant and the first accused and the stipulation is also in between the first accused as well as the mother of the de facto complainant. It has also come out that de facto complainant has amicably settled the entire issues with the petitioners and she do not want any further prosecution against the petitioners. Since the issues between the parties (petitioners and the de facto complainant) appear to be civil in nature and they have already settled the matter

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amicably, further continuation of the proceedings against the petitioners would be an abuse of process of court. So, I find it just and proper to quash the entire further proceedings against the petitioners in C.C.No.1564/2018 on the file of the J.F.C.M, Thodupuzha.

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In the result, the entire further proceedings against the petitioners/accused 2 and 3 in C.C.No.1564/2018 on the file of

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the J.F.C.M, Thodupuzha which arise out of Crime No.357/2018 of Karimannoor police station is hereby quashed.

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(sd/-) M.R.ANITHA, JUDGE

jsr

Crl.M.C.No.2967/2019

APPENDIX OF CRL.MC 2967/2019

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PETITIONER ANNEXURES

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ANNEXURE A1	CERTIFIED COPY OF THE COMPLAINT DATED 21.5.2018 PREFERRED BY THE DE-FACTO COMPLAINANT.
ANNEXURE A2	CERTIFIED COPY OF FIRST INFORMATION REPORT IN CRIME NO. 357/2018.
ANNEXURE A3	CERTIFIED COPY OF FINAL REPORT FILED BY THE POLICE
ANNEXURE A4	TRUE COPY OF THE AGREEMENT DATED 20.8.2014.
ANNEXURE A5	TRUE COPY OF THE POSSESSORY DALE DEED DATED 27.5.2015.
ANNEXURE A6	TRUE COPY OF THE TRIPARTITE AGREEMENT DATED 18.4.2016.
ANNEXURE A7	TRUE COPY OF THE PLAINT IN OS NO. 23/2007 BEFORE SUB COURT, THODUPUZHA.
ANNEXURE A8	TRUE COPY OF ORDER DISMISSING OS NO. 23/2017.
ANNEXURE A9	CERTIFIED COPY OF SALE DEED NO. 599/2015 OF THODUPUZHA SRO.
ANNEXURE A10	TRUE COPY OF LAWYER NOTICE DATED 9.2.2018 SENT BY THE 1ST ACCUSED.

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RESPONDENTS' ANNEXURES : NIL

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TRUE COPY

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P.S TO JUDGE

Tittu Kissan v. State of Kerala

Case brief

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Tittu Kissan v. State of Kerala

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