Accused sought quashing of cheating charges arising from sale of property with an undisclosed Rs.5 lakh bank mortgage. The court found prima facie deceitful intent from the document recitals and case diary, held the matter must go to trial, and dismissed the quash petition.
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 A. BADHARUDEEN
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRL.MC NO. 5176 OF 2019
CC NO.2413 OF 2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS,PALA
PETITIONER/1ST AND 2ND ACCUSED:
1 JOLLYCHAN P JOSEPH AGED 52 YEARS S/O. JOSEPH, PULIMOOTTIL HOUSE, ERATTUPETTA P. O., THALAPPALAM KARA, ERATTUPETTA VILLAGE, PIN - 686121.2USHA JOLLYCHAN
AGED 49 YEARS
W/O. JOLLYCHAN P. JOSEPH, PULIMOOTTIL HOUSE,
ERATTUPETTA P. O., THALAPPALAM KARA, ERATTUPETTA
VILLAGE, PIN - 686121.
BY ADVS.
BABY THOMAS
MARIAMMA JOSEPH
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682031.2 P. T. THOMAS, AGED 62 YEARS S/O. THOMAS, PLATHOTTATHIL HOUSE, CHERPUNKAL P. O., KIDANGOOR VILLAGE, PULLAPPALLY KARA, PIN - 686584.SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
20.05.2024, THE COURT ON 23.05.2024 PASSED THE FOLLOWING:
Crl.M.C.No.5176/2019 2
A. BADHARUDEEN, J.
================================
Crl.M.C No.5176 of 2019-F
================================ Dated this the 23 rd day of May, 2024
O R D E R
This Criminal Miscellaneous Case has been filed under
Section 482 of the Code of Criminal Procedure (`Cr.P.C’ for short) by the 1 st and 2 nd accused to quash Annexure-B final report and all proceedings in C.C.No.2413/2014 pending before the Judicial First Class Magistrate Court, Pala.
2 . Heard the learned counsel for the petitioners as well as
the learned Public Prosecutor in detail. Perused the documents
produced by the petitioners and the case diary as such produced by
Crl.M.C.No.5176/2019 3
the learned Public Prosecutor at depth.
3 . Background facts: In this matter, criminal law was set in motion by the complainant by filing complaint under Section 200 of the Code of Criminal Procedure alleging that the accused/petitioners herein committed offences punishable under Sections 417 and 420 r/w 34 of the Indian Penal Code. Complaint was forwarded to the Magistrate under Section 156(3) of Cr.P.C and after investigation police filed final report alleging commission of the above offences by accused 1 and 2. The specific allegation is that the petitioners executed sale deed No.2009/2012 of Erattupetta SRO in favour of the 2 nd respondent/complainant after suppressing liability of Rs.5 lakh subsisting with District Cooperative Bank, Kottayam Branch after assuring the complainant that the property is devoid of any liability.
4 . While canvassing quashment of the FIR as well as final
Crl.M.C.No.5176/2019 4
report, the learned counsel for the petitioners contended that the document itself is a sham document, executed as security when the petitioners availed loan from the complainant and for which a Suit also has been filed. He also argued that the complainant discharged the liability with the District Co-operative Bank, Kottayam and filed another Suit to release the amount thereof and execution of the decree in the said case has been pending.
5 . According to the learned counsel for the petitioners, the document itself is a sham document and the contents therein assuring no liability subsisting in the document could not be considered as valid ground to hold that the accused herein committed offences punishable under Section 417, 420 r/w 34 of IPC.
6 . Per contra it is submitted by the learned Public Prosecutor that on perusal of the document it is emphatically clear
Crl.M.C.No.5176/2019 5
that the property was sold for valid consideration of Rs.6,45,000/and it was recited in the document by the petitioners that the property was devoid of encumbrance, at the time of execution of the document. But subsequent enquiry revealed that the property was encumbered with District Co-operative Bank, Kottayam for Rs.5 lakh and the complainant was forced to discharge the said liability.
7 . In so far as quashment sought for herein is concerned, it
is vivid from the copy of the document available in the case diary that the property was sold on receiving Rs.6,45,000/- as sale consideration and it was stated in the document that the property was fully free from all liabilities. But it was found subsequently that the property was encumbered with District Co-operative Bank. 8 . So prima facie it appears that the property wherein liability was subsisting by way of mortgage created by the
Crl.M.C.No.5176/2019 6
petitioners transferred in the name of the complainant and therefore
the deceitful intention to cheat and defraud the complainant is prima facie made out. In such a case, the matter has to go for trial and quashment of the proceedings cannot be considered. Therefore, this petition stands dismissed.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
Crl.M.C.No.5176/2019 7
APPENDIX OF CRL.MC 5176/2019
PETITIONER'S ANNEXURES
ANNEXURE AA TRUE COPY OF THE COMPLAINT DATED
1.09.2014.
ANNEXURE BA TRUE COPY OF THE CHARGE SHEET IN
C.C.NO.2413/2014 BEFORE THE JFMC PALA.
ANNEXURE CA TRUE COPY OF THE COMMISSION REPORT.
1 issue framed by the court
Whether criminal proceedings for cheating under Sections 417/420 IPC should be quashed where a sale deed allegedly concealed an existing mortgage liability.
4 provisions across 2 enactments
Jollychan P Joseph
Usha Jollychan
State of Kerala
P. T. Thomas
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court