IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1271 of 2007(E)
1. M.V.KUNHAPPAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.M.V.AMARESAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :17/12/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 1271 OF 2007
............................................
DATED THIS THE 17th DAY OF DECEMBER, 2008
ORDER
Revision petitioner is the complainant in CMP 1291 of 2006
before Judicial First Class Magistrate, Payyannur. Complaint
was filed against two accused alleging that they committed
offences under Section 420 and 465 read with 34 IPC. Learned
Magistrate, after recording the sworn statement of revision
petitioner and his witness, dismissed the complaint under
Section 203 of Code of Criminal Procedure stating that there is
no sufficient ground to proceed with the complaint. Revision
petition is filed contending that the order is illegal and learned
Magistrate did not consider the materials and when materials
available prima facie prove the offence, learned Magistrate
should have proceeded further by issuing summons under
Section 204 of Code of Criminal Procedure.
2. Case of revision petitioner in the complaint was that he
was in search of a property at Payyannur and knowing this,
second accused approached him stating that 31 cents in
R.S.78/70 and 78/9 of Payyannur Taluk belongs to him and was
available for sale and showed the original sale deed and tax
CRRP 1271/2007 2
receipts. It is the case of revision petitioner that petitioner
agreed to purchase the property and thereafter for valid
consideration, second respondent executed registered sale deed
2770/99 and put petitioner in possession and he has been in
possession of the property after constructing a compound wall
on all sides. It was contended that on 31.10.2005, first accused
attempted to trespass into the property and revision petitioner
had to file a civil suit before Munsiff Court, Payyannur as
O.S.200/05 and in that suit, first accused raised a contention that
the property was sold to him by second petitioner on 26.11.1997.
According to revision petitioner, second accused is the agent of
first accused and it is in furtherance of their common intention,
suppressing the sale, second accused sold the property to
revision petitioner and induced revision petitioner to pay the
consideration and therefore offences under Section 420 and 465
read with 34 IPC were committed. As dismissal of the complaint
was under Section 203 of Code of Criminal Procedure, before the
appearance of accused, accused were not impleaded or notice
taken to them.
3. The sworn statement of revision petitioner and the
witness, along with documents produced by the complainant
CRRP 1271/2007 3
show that second accused executed a sale deed in favour of
revision petitioner, suppressing the existence of the earlier sale
in favour of first accused. Learned Magistrate found that copy
of the encumbrance certificate dated 2.7.1999 would show that
there is no entry regarding execution of a document in favour of
first accused but for the reason that revision petitioner did not
produce the encumbrance certificate obtained in 2005, which
shows that an earlier sale deed was registered, learned
Magistrate found that there is no material to proceed further.
Revision petitioner has produced copy of the registered sale
deed executed on 26.11.1997. That sale was suppressed when
the property was sold again to revision petitioner by the second
accused. It is clear from the materials that learned Magistrate
did not conduct a proper enquiry and dismissed the complaint
under Section 203 of Code of Criminal Procedure, without
considering whether there are sufficient grounds to proceed. In
such circumstances, the order dismissing the complaint dated
5.8.2006 is illegal and could only be set aside.
4. Revision petition is allowed. The order dated 5.8.2006 of
Judicial First Class Magistrate, Payyannur dismissing CMP 1291
of 2006 is set aside. CMP 1291 of 2006 is restored to file.
CRRP 1271/2007 4
Learned Magistrate is directed to conduct proper inquiry and
consider whether the materials produced by petitioner along
with the sworn statement are sufficient to proceed as provided
under Section 204 of Code of Criminal Procedure and if not
complaint is to be dismissed under Section 203 of Code of
Criminal Procedure.
Send back the records.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-