IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2181 of 2010()
1. MRS.SILO, W/O.SURENDRAN, AGED 39 YEARS,
... Petitioner
2. K.K.SURENDRAN, S/O.KRISHNAN,
3. MRS.LAILA, D/O.KRISHNAN, AGED 46 YEARS,
4. MRS.BHAVANI, W/O.KRISHNAN, AGED 66
5. MR.RAGHAVAN, S/O.AYYAPPAN, AGED 69
6. MR.PONNU, S/O.AYYAPPAN, AGED 65 YEARS,
7. MR.SHAJI, S/O.RAMAN, AGED 43 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE FEDERAL BANK LTD., KOLENCHERRY
For Petitioner :SRI.M.K.DILEEPAN
For Respondent :SRI.GEORGE KURUVILLA
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/09/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No. 2181 OF 2010
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Dated this the 20th day of September,2010
ORDER
Petitioners are the accused and second
respondent the de facto complainant in
C.C.721/2007 on the file of Judicial First
Class Magistrate’s Court, Kolencherry, taken
cognizance for the offences under sections 406,
418, 420, and 423 read with section 149 of
Indian Penal Code, on Annexure A2 final report
in Crime 429/2005 registered, based on
Annexure A1 complaint before Judicial First
Class Magistrate’s Court, Kolencherry and sent
for investigation under section 156(3) of Code
of Criminal Procedure. Annexure A1 complaint
shows that case of the second respondent Bank
was that first respondent mortgaged 7.165
cents of property including a house to the
Bank as security for the loan obtained from the
Crl.M.C.2181/2010 2
Bank and first petitioner had obtained the right as
per sale deed dated 17.11.1999 and when there was
default in repayment of loan, O.S.47/2002 was filed
for realisation of the amount by sale of the
mortgaged property. A decree was passed.In
execution of the decree E.P.228/2004 was filed.
In that E.P., a claim petition was filed by Shaila,
sister of petitioners 2 and 3 the daughter of
fourth petitioner and sale was adjourned. It was
revealed that as per registered partition deed
No.1856/1973, property was allotted to the share
of Shaila and deceased Krishnan, her father, the
husband of fourth petitioner. On the death of
Krishnan, petitioners 2 to 4 sold the property to
seventh petitioner as per sale deed 878/1999.
Petitioners 5 and 6 had joined in execution of the
sale deed. It is alleged that petitioners 5 and 6
were aware of the rights of Krishnan. Seventh
petitioner as per sale deed dated 9.4.1999,
transferred the property in favour of first
petitioner who is the wife of second petitioner
Crl.M.C.2181/2010 3
and then first petitioner mortgaged the same to the
Bank and all the petitioners thereby committed the
offences as alleged. This petition is filed under
section 482 of Code of Criminal Procedure to quash
the proceedings contending that first petitioner
had purchased the property from the legal heirs of
deceased Krishnan and she had no reason to suspect
the genuineness of the transaction and in any case,
the entire liability due to second respondent Bank
was cleared and in such circumstances, it is not in
the interest of justice, to continue the
prosecution.
2. Second respondent appeared through a
counsel and submitted that Bank has received the
entire amount due under the decree is admitted but,
that payment was not made by the Principal debtor
but by the guarantors.
3. Learned counsel appearing for the
petitioners, second respondent and learned Public
Prosecutor were heard.
4. Prosecution case is that first petitioner
Crl.M.C.2181/2010 4
mortgaged 7.165 cents of land in survey No.621/D
inclusive of the house, for a loan availed from the
bank and later bank instituted O.S.47/2002 for
realisation of the amount and in execution of the
decree E.P.228/2004 was filed. It is the case that
in the execution petition, Shaila filed a claim
petition claiming right in the property as per
registered partition deed obtained by her and her
father. It is alleged that though the property was
assigned in favour of the seventh petitioner by
petitioners 5 and 6, their right was not effected
and first petitioner falsely obtained the sale deed
from the seventh petitioner and therefore offences
are committed. It is admitted case that
subsequently entire debt due under the decree in
O.S.47/2002 was paid, though it was not paid by the
principal debtor but the guarantor. The claim of
the bank has thus satisfied. The question is in
such circumstance, whether prosecution against
petitioners is to be continued. Though
petitioners 2 to 7 are being prosecuted based on
Crl.M.C.2181/2010 5
Section 149 of Indian Penal Code, it is clear from
Annexure A1 complaint and Annexure A2 final report
that the case of second respondent Bank is that
first petitioner obtained a loan and mortgaged the
property claiming that he obtained right as per
sale deed No.1711/1999 and that sale deed was
obtained from the seventh petitioner, who in turn
obtained the right from petitioners 5 and 6. But
the property belonged to Shaila and her father
Krishnan who were not parties to the sale deed. It
is therefore contended that in such circumstances,
the offences are committed.
5. If the officials of the Bank had verified
the title deeds, it would have shown that the
property was the subject matter of partition deed
No.1856/1973 and was allotted to the share of
Krishnan and Shaila and under the sale deed
obtained by the seventh petitioner from
petitioners 2 to 4 including the widow of Krishnan,
entire rights have not been transferred. But on
the ground that first petitioner did not obtain
Crl.M.C.2181/2010 6
entire right under the sale deed, it cannot be
said that there was an intention to first
petitioner or other petitioners to commit the
offence under section 420 of Indian Penal Code or
to misappropriate the amount as claimed by the
prosecution. In such circumstances, when the
entire amount due to the second respondent Bank has
already been received, though not from the
principal debtor but from the guarantors, it is not
in the interest of justice to continue the
prosecution.
Petition is allowed. C.C.No.721/2007 on the
file of Judicial First Class Magistrate’s court,
Kolencherry as against petitioners is quashed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006