Mohammed Riyas, Vs the State of Kerala

¶1

2025:KER:18424

¶2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶3

PRESENT

¶4

THE HONOURABLE MR.JUSTICE V.G.ARUN

¶5

WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946

¶6

CRL.MC NO. 1990 OF 2022

¶7

CRIME NO.847/2019 OF Valappatanam Police Station, Kannur

¶8

 CC NO.794 OF 2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,

¶9

KANNUR

¶10

PETITIONERS/ACCUSED:

¶11

1 MOHAMMED RIYAS, AGED 48 YEARS S/O HAMEED, BAITHUL RILWAN, P.O KADALAYI, KANNUR, PIN – 670003.

¶12

2P.K. NASEEMA,
AGED 38 YEARS
W/O MOHAMED RIYAS, BAITHUL RILWAN, P.O KADALAYI,

¶13

KANNUR, PIN – 670003.

¶14

3 PRAMOD, AGED 42 YEARS

¶15

S/O. MUKUNDAN NAIR, CHIRAPADAMMAL HOUSE, SHYAMALA
NILAYAM, POOTHAPARA, AZHIKODE, KANNUR, PIN – 670009.

¶16

BY ADVS.
ABDUL RAOOF PALLIPATH
PRAJIT RATNAKARAN
RAJ CAROLIN V.

¶17

RESPONDENT/STATE & DE FACTO COMPLAINANT:

¶18

1 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.

¶19

2025:KER:18424

¶20

CRL.MC NO. 1990 OF 2022 2

¶21

2CHALAKKARAN KUNNUMBRATH NIRMALA,
AGED 72 YEARS

¶22

W/O. LATE CHOYYON ACHUTHAN, RESIDING AT ABHILASH,COLONY
GATE, P.O. AZHEEKODE, KANNUR, PIN – 670009.

¶23

BY ADVS.
P.U.SHAILAJAN

¶24

SR .PP.PUSHPALATHA M.K.

¶25

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶26

2025:KER:18424

¶27

CRL.MC NO. 1990 OF 2022 3
ORDER

¶28

Learned counsel for the petitioners strenuously contended

¶29

that even if the allegations are accepted in toto, the offences of cheating and breach of trust will not be attracted against the petitioners. According to the learned counsel, the transaction is purely civil in nature, regarding which a civil suit is also pending. In elaboration, learned counsel submitted that originally an agreement was executed between the 2^nd petitioner and de facto complainant for sale of 23 cents belonging to the de facto complainant. Later, it turned out that a suit was pending in respect of the property and hence sale deed for 15 cents alone was executed. The allegation is that out of the sale consideration for the 15 cents, Rs.3.5 lakhs was paid by way of two cheques which, on presentation, were dishonoured for want of funds. It is contended that dishonours of the cheques may give rise to the cause of action for filing complaint under Section 138 of the

¶30

2025:KER:18424
CRL.MC NO. 1990 OF 2022 4

¶31

Negotiable Instruments Act and cannot result in prosecution for offences punishable under Sections 406 and 420 of the IPC. Moreover, Rs.10 lakhs paid by the 2^nd petitioner as advance for the entire 23 cents is yet to be returned by the de facto complainant. The complaint alleging breach of trust and cheating was filed only after the 2^nd petitioner instituted a suit for the return of the advance amount of Rs.10 lakhs.

¶32

Learned counsel for the de facto complainant refuted the

¶33

allegation that his client had received the entire sale consideration. Referring to the statement of witnesses, it is submitted that the dishonored cheques were subsequently returned to the 3^rd petitioner and replaced with fresh cheques. These cheques were encashed but the proceeds were not disbursed to the de facto complainant. This indicates a concerted attempt on the part of the 2^nd and 3^rd petitioners to defraud the de facto complainant. It is the further submission of the learned counsel that the conspiracy is further evident from difference in the writings on the reverse side of the

¶34

2025:KER:18424

¶35

CRL.MC NO. 1990 OF 2022 5 agreement produced along with the Crl.M.C and the copy given to

¶36

the de facto complainant, produced along with the counter affidavit as Annexure R2(a). It is also the submission of the learned counsel that the notice demanding the payment of Rs.3.5 lakhs was issued on 27.05.2019 and thereafter the 2^nd petitioner instituted the suit on 22.08.2019 by forging the endorsement in the agreement.

¶37

Having heard the learned counsel on both sides, this

¶38

Court is of the definite opinion that the contentions urged on behalf of the petitioners can be decided only upon appreciation of evidence, which cannot be done under Section 482 of the Code of Criminal Procedure. It is settled law that while exercising the power under Section 482 Cr.P.C, the High Court should not normally undertake the exercise of appreciating the evidence but should leave it open for the competent court to do so. The proper remedy therefore is to approach the trial court with a petition for discharge, as that court can sift the evidence and reach the correct

¶39

2025:KER:18424

¶40

CRL.MC NO. 1990 OF 2022 6 conclusion.

¶41

The Crl.M.C is accordingly closed, without prejudice to the

¶42

petitioners’ right to move for discharge and with a direction to the

¶43

trial court to consider the petition and pass appropriate orders

¶44

thereon.

¶45

Sd/-

¶46

V.G.ARUN
JUDGE

¶47

Sru

¶48

CRL.MC NO. 1990 OF 2022 7

¶49

2025:KER:18424

¶50

APPENDIX OF CRL.MC 1990/2022

¶51

PETITIONER ANNEXURES

¶52

Annexure1CERTIFIED COPY OF THE FIR WITH FINAL REPORT
IN CRIME NO. 847/2019 OF THE BALIAPATTAM
POLICE STATION

¶53

Annexure2TRUE COPY OF THE AGREEMENT DATED 28.3.2016
Annexure3TRUE COPY OF THE COUNTER STATEMENT IN IA NO.
512/2017 IN OS NO. 116/2017 OF THE DEFACTO
COMPLAINANT FILED BEFORE THE MUNSIFF COURT,
THALASSERY

¶54

Annexure4TRUE COPY OF THE JUDGMENT DATED 23.5.2018 IN
OS NO. 116/2017 OF THE MUNSIFF COURT,
THALASSERY

¶55

Annexure5TRUE COPY OF THE PLAINT IN OS NO. 279 /2019
DATED 22.8.2019 FILED BEFORE THE MUNSIFF
COURT, THALASSERY

¶56

RESPONDENT ANNEXURES

¶57

Annexure R2(b)True copy of the notice dated27.5.2019
Annexure R2(a)True copy of the agreement dated 28.3.2016
along with Endorsment dt 30.3.2017(further
period of extension)

Mohammed Riyas, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Mohammed Riyas, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Raghav Nair, Vs the State of Kerala

Pradeep Kumar L S Vs George Paulose

M. Shajideen, Vs K.M. Ashraf

A.C.Baby, Vs State of Kerala

The Bishop House Foundation No. 88, Vs K. Bovas

Rasheed M., Vs State of Kerala