Dismissed

Harish v. Nabeesakutty Umma

Kerala HC25 Sept 2023Crl.Rev.Pet/87/2018

Case brief

AI extract

What is this about?

High Court dismissed criminal revision petition challenging rejection of private complaint. Bench held no allegation of dishonest inducement and allowed dismissal under Section 203 Cr.P.C.

What did the court decide?

Revision petition dismissed; impugned order allowing dismissal of private complaint under Section 203 Cr.P.C. affirmed.

Harish Vs Nabeesakutty Umma — Cheating and Forgery | Kerala HC (2023)

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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 N.NAGARESH

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MONDAY, THE 25^TH DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945

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CRL.REV.PET NO. 87 OF 2018

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AGAINST THE ORDER/JUDGMENT CRMP 6938/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM

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REVISION PETITIONER/COMPLAINANT:

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HARISH, 42 YEARS, S/O. MUHAMMEDKUTTY, THARAYANKANDATHIL HOUSE, ARIYURTHEKKUMURI DESOM, OTTAPALAM AMSOM AND POST, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADVS. SRI.R.SREEHARI SRI.SACHIN VYAS

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RESPONDENTS/ACCUSED 1 AND 2 & STATE:

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1 NABEESAKUTTY UMMA, AGED 81 YEARS, M/O. RAMEELA TEACHER, SIDNY, GOKHALE HIGH SCHOOL ROAD, PADINJARANGADI, PATTAMBI TALUK, PALAKKAD DISTRICT.

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2 KUNJIMOL, AGED 64 YEARS, W/O. LATE UMMER, C/O. ZAKKEENA, W/O. ABDUL RAHMAN, ASHHAR APARTMENT, 1ST MILE, MANNUR, PALAKKAD DISTRICT 678642. 3 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031.

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BY ADVS. SRI.P.JAYARAM FOR R1 SMT.SEENA C., PUBLIC PROSECUTOR FOR R3.

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Crl.R.P. No.87/2018

: 2 :

N. NAGARESH, J.

--------------------------------------------------Crl.R.P. No.87 of 2018

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---------------------------------------------------

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Dated this the 25^th day of September, 2023

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ORDER

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The revision petition has been filed by the complainant aggrieved by the rejection of a private complaint filed under

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Section 190(1)(a) of the Criminal Procedure Code.

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The petitioner alleged that the property belonging to

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the complainant's father and 1^st accused was partitioned as per a Partition Deed and a pathway was set apart as common to the parties No.2, 4 and 5 and included in Schedule 7. The petitioner would submit that the right to use the pathway was exclusively given to the father of the petitioner and other sisters. The right to pathway was not given to the

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1^st respondent. However, the 1^st respondent made a

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Crl.R.P. No.87/2018

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: 3 :

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Settlement Deed and registered the Settlement Deed in the name of the 2^nd respondent claiming right to use the pathway in question. Under these circumstances, the petitioner alleged that the 1^st respondent has committed offence under Sections 191, 420 and 447 IPC.

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The Judicial First Class Magistrate Court-I, Ottapalam took cognizance of the offence and examined the petitioner under Section 200 Cr.P.C. After hearing the petitioner, the Magistrate noted that the first offence alleged against the accused is under Section 191 IPC. As per Section 195 Cr.P.C., cognizance of that offence can be taken only on complaint in writing of that court or by such officer of that court authorised by the court or some other court to which the court is subordinate.

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In so far as the offence under Section 420 IPC, the Magistrate considered the aspect of dishonest inducement to deliver the property as per the allegation of the petitioner. The complainant has a case that the accused had cheated. Without

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Crl.R.P. No.87/2018

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: 4 :

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the basic ingredients of dishonest inducement from the part of the complainant for delivery of property, the offence of cheating will not be attracted. On these premises, the Judicial First Class Magistrate's Court-I, Ottapalam held that there is no sufficient ground for proceeding in this case. Complaint was accordingly dismissed under Section 203 of Cr.P.C.

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The counsel for the petitioner argued that the right to pathway in the Partition Deed was enumerated in 7^th Schedule of the Deed and the right is only vested with the petitioner's father and other sisters. No right is given to the 1^st respondent in the Partition Deed. The 1^st respondent has deliberately suppressed this fact and entered into a Settlement Deed by which, a non-existent right to pathway of the 1^st respondent has been transferred to the 2^nd respondent. That itself is sufficient to show the dishonest inducement of the 1^st respondent. The facts disclosed would constitute offence under Section 420 IPC, contended the counsel for the petitioner.

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Crl.R.P. No.87/2018

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: 5 :

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The counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17] wherein the Apex Court held that certain set of facts will give rise to a civil claim and also amount to an offence and merely because a civil claim is maintainable, it does not mean that the criminal complaint cannot be maintained. Relying on the said judgment, the counsel for the petitioner submitted that there is prima facie case against the 1^st respondent. In the circumstances, the rejection of private complaint is unjustified.

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Counsel entered appearance on behalf of respondents 1 and 2 and resisted the revision petition. The counsel for respondents 1 and 2 submitted that the dishonest inducement is the fundamental ingredient of an offence under Section 420 IPC. Here the transaction is by way of settlement between the 1^st respondent and the 2^nd respondent, who is the 1^st respondent's daughter. The element of dishonesty has not been prima facie set forth in the complaint or in the statement

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Crl.R.P. No.87/2018

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: 6 :

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given by the petitioner. Order passed by the Magistrate's court is therefore perfectly legal and is not liable to be interfered with.

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I have heard the learned counsel for the petitioner and the learned counsel appearing for respondents 1 and 2. I have also heard the learned Public Prosecutor representing the 3^rd respondent.

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The case of the petitioner is that the pathway is set apart to the share of his father, the 5^th party in the Partition Deed and it was set apart to his share as per the Settlement Deed. The petitioner would submit that it has set apart a common way to the 2^nd and 5^th parties as per the Partition Deed.

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Perusing the pleadings, I find that there is no allegation of dishonest inducement to deliver any property, involved in this case. The basic ingredients to constitute an offence under Section 420 IPC are not satisfied. The Magistrate's court rightly dismissed the complaint filed by the petitioner invoking Section 203 Cr.P.C.

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Crl.R.P. No.87/2018

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: 7 :

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Therefore, I find no reasons to interfere in the matter. The

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Criminal Revision Petition therefore fails and it is dismissed.

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Sd/N. NAGARESH JUDGE

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sss

Harish v. Nabeesakutty Umma

Case brief

What is this about?

What did the court decide?

Harish v. Nabeesakutty Umma

Case brief

What is this about?

What did the court decide?

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