IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1025 of 2004()
1. ABDUL KHADER, S/O. ASSAINAR,
... Petitioner
Vs
1. THE STATE OF KERALA - REPRESENTED BY
... Respondent
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :14/08/2009
O R D E R
A.K.BASHEER, J.
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Crl.M.C.No.1025 OF 2004
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Dated this the 14th day of August 2009
ORDER
Petitioner has been arraigned as accused along with one Kamalam
Bhaskaran in a complaint filed by late Thankamma Thomas alleging
commission of offences punishable under Sections 420, 423, 463, 467, 468
and 473 r/w Section 34 IPC. The said private complaint was referred to
the police by the learned Magistrate for investigation under Section 156(3)
of the Code of Criminal Procedure. Consequently, Annexure-I, First
Information Report was registered as Crime No.260/04 by Thrissur East
Police Station against the petitioner arraigning the petitioner as accused
No.2 and Kamalam Bhaskaran as accused No.1. Annexure-II is stated to
be the complaint preferred by Thankamma Thomas through her power of
attorney holder Sri.Peter C John (Additional respondent No.2 who is stated
to be the daughter of Smt.Thankamma Thomas has been subsequently
impleaded in this case).
2. The case of the complainant as is discernible from Annexure I is
that the complainant had purchased a plot of land having an extent of 41
cents situated in Survey No.757/P of Chembukavu Village from one
Antony, S/o Thomas, Karingada on the strength of a registered document
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bearing No.4938/99 on August 31, 1999. The said property, according to
the complainant, was purchased by her on the strength of four registered
documents of the year 1999 from Edassery Manackal Krishnan
Namboothiry and others. The allegation in the complaint is that in July
2001, accused No.1 had got the said property registered in his name at the
Thrissur Sub Treasury office under an assignment deed bearing
No.4250/2001 by impersonating himself as Edassery Manackal Narayanan
Namboothiry, S/o Krishnan Namboothiry. It is further averred in the
complaint that the police had registered crime No.860/01 in this
connection against accused No.1. The further allegation in the complaint
is that on the strength of the above mentioned fabricated forged document
(document No.4250/01) accused No.1 in connivance with accused no.2
(petitioner herein) and the Sub Registrar had got registered yet another
document bearing No.1885/04 at Thrissur Sub Registry on March 19,
2004. Thus the petitioner had committed the offences aforementioned in
furtherance of the common object along with accused No.1.
3. A perusal of annexure I complaint will show that the only specific
allegation against the petitioner is that he had got a document registered
in his name in respect of the property which is allegedly in the possession
and enjoyment of the complainant in connivance with accused no.1. It may
be noticed that petitioner had purchased the property in question, on the
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strength of the registered document bearing No.1885/04 registered at
Thrissur Sub Registry on March 19, 2004 for a total consideration of
Rs.47,97,500/-. Obviously, and as is tacitly admitted by the complainant
herself, the petitioner had purchased the said property from accused No.1
who had got the said property assigned in his favour in the year 2001 by
virtue of document No.4250/01. It is true that a case is allegedly pending
against accused No.1 in crime No.860/01 registered by the police at the
instance of the complainant. Apparently the assignment in favour of the
petitioner is three years after the purchase made by accused No.1 in his
favour in the year 2001.
4. There is considerable force in the contention raised by learned
counsel for the petitioner that by no stretch of imagination the petitioner
can be held to be privy to any criminal offence much less the various
offences mentioned in the complaint. Petitioner had purchased the said
property under the bonafide belief and impression that it belonged to
accused no.1. He had made the purchase after verifying the records and
having been satisfied that document No.4250/01 which stood in the name
of accused No.1 related to a bonafide transaction. Petitioner had also paid
property tax in respect of the said property and he has been keeping
possession of the same after paying the tax in his name (annexure IV).
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5. There is yet another aspect of the matter. It is the admitted
position that the complainant has instituted a civil suit against the
petitioner and the co-accused apart from two others who were stated to be
the witnesses to the document in question before the Subordinate Judge’s
Court, Thrissur. The complaint was filed before the police on the next day
viz. April 1, 2004. Annexure-III is the true copy of the plaint in the above
civil suit filed by the complainant. A perusal of the averments in the plaint
will show that the very same averments as are incorporated in the
complaint are reiterated in the plaint also. The prayer in the suit is to pass
a decree of declaration that the two sale deeds namely, 4250/01 in favour
of accused No.1 and sale deed No.1885/04 in favour of accused No.2
(petitioner herein) are null, void and fabricated. It is not necessary to
refer to the other incidental and ancillary reliefs prayed for in the suit.
6. Annexure-IV, revenue receipt evidencing payment of revenue
after purchase of the property and also annexure V, the encumbrance
certificate issued by the Department of Registration in respect of the said
property obtained by the petitioner at the time of purchase made by him
will prima facie substantiate the case of the petitioner that he is a bonafide
purchaser. In any view of the matter, the fact that petitioner had
purchased the said property from accused No.1 spending a huge sum to
the tune of about 48 lakhs will show that the prosecution launched against
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him alleging commission of the various offences mentioned above is not
warranted at all.
7. Significantly, the complainant had instituted a suit against the
petitioner on the next day after filing the complaint before the police. The
validity of the registered document in the name of accused No.1 is the
subject matter of the suit and obviously the civil court is in seisin of the
matter. Annexure VI, report and plan prepared by the Advocate
Commissioner in the above suit, will further show that there appears to be
some disputes with regard to the identity of the property as well.
8. Having regard to the entire facts and circumstances of the case
and having heard learned counsel for the parties, I am satisfied that the
proceedings pending against the petitioner cannot be justified.
9. In Inder Mohan Goswami and another vs. State of
Uttaranchal and Ors. (AIR 2008 SC 251) it has been held that the
inherent powers under Section 482 of the Code can be exercised to
prevent abuse of process of court. In the above case also the facts are
almost identical. A civil suit was instituted in respect of the subject matter
in that case also. Their lordships held that since the veracity of the facts
alleged by the authorities can only be ascertained on the basis of evidence
to be adduced by the parties before the civil court, it would not be just or
proper to proceed against the accused before the criminal court.
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Therefore, the apex court had quashed the proceedings launched against
the accused in that case.
Having carefully perused the entire materials available on record, I
am satisfied that the proceedings now pending against the petitioner in
Crime No.260/04 of Thrissur East Police Station are liable to be quashed.
I do so. Crl.M.C. is allowed. However, it is made clear that this order will
have no bearing on the civil suit referred to above.
(A.K.BASHEER, JUDGE)
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