IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 900 of 2007()
1. MARY,W/O JOSE,CHIRAYATH HOUSE,
... Petitioner
2. JOSE,S/O.OUSEPH,-DO-
Vs
1. ARAVINDAKSHAN,S/O.KRISHNAN,KUNJARA
... Respondent
2. THE STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.DILIP J. AKKARA
For Respondent :SRI.T.A.SHAJI
The Hon'ble MR. Justice R.BASANT
Dated :05/01/2009
O R D E R
R. BASANT, J.
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Crl.M.C.No. 900 of 2007
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Dated this the 5th day of January, 2009
O R D E R
The petitioners, spouses, have come before this Court with
a prayer that the criminal prosecution initiated against them by
the first respondent/complainant may be quashed invoking the
extra ordinary inherent jurisdiction under Section 482 Cr.P.C.
The first petitioner/accused is the owner of about 63 cents of
land. The second petitioner/accused is her husband. They
allegedly entered into an agreement with one Shaji on 24.11.1998
for sale of the said item of property. An amount of Rs.10,000/-
was received by way of advance/earnest money and the balance
amount of Rs.65,000/- was agreed to be paid later as per the said
written agreement dt.24.11.98. On 26.11.1998 the balance
amount of Rs.65,000/- is also alleged to have been paid by the
said Shaji and received by the petitioners. Sale Deed was not
executed. The period stipulated for the performance of the
agreement had elapsed.
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2. At that juncture, the petitioners allegedly entered into another
agreement with the defacto complainant, the first respondent herein,
agreeing to sell the very same property to him for a consideration of
Rs.2,52,000/- That agreement was entered into on 4.8.1999. In that
agreement the earlier agreement with Shaji was specifically recited. It
was recited that towards the sale consideration of Rs.75,000/- an
amount of Rs.10,000/- had been received. The sale consideration was
received in advance as per agreement dt. 4.8.1999 for the purported
purpose of discharging the liability in respect of the earlier transaction.
Possession of the property was also handed over to the first respondent
as per agreement dt.4.8.1999. Though the defacto complainant
continued to remain in possession on the strength of the said
agreement, the sale deed was not executed and in these circumstances
the defacto complainant filed a complaint before the learned Magistrate
alleging commission of the offence of cheating by the petitioners. That
complaint was referred to the police and the police after due
investigation submitted a refer report, which was accepted.
3. The first respondent filed a protest complaint making identical
allegations. The learned Magistrate considered the said complaint in
Crl.M.C.No. 900 of 2007
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accordance with law and by Annex.A3 order dt.6.10.2001 dismissed
the said complaint under Section 203 Cr.P.C. holding that no sufficient
ground has been revealed to justify issue of processes under Section
204 Cr.P.C. The dismissal of that complaint was challenged before the
Sessions Court in revision and the Sessions court dismissed the said
complaint on the ground that there has been delay. Dismissal of the
private complaint under Section 203 Cr.P.C. thus became final.
4. Thereafter the first respondent filed another private complaint
raising identical allegations again against the petitioners. On that
complaint cognizance has been taken by the learned Magistrate and it
is aggrieved by such course adopted by the learned Magistrate that the
petitioners have come before this Court now.
5. The learned counsel for the petitioners submits that the
learned Magistrate having already accepted the refer report submitted
by the police after due investigation and the same Magistrate having
later dismissed the complaint under Section 203 Cr.P.C., which
dismissal has become final with the rejection of the revision petition as
barred by limitation by the revisional court, the learned Magistrate was
totally unjustified in taking cognizance and issuing process under
Crl.M.C.No. 900 of 2007
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Section 204 Cr.P.C. The learned counsel for the petitioners submits
that no circumstances whatsoever exist to justify the entertainment of
a subsequent complaint after successive dismissal of the earlier
complaint before the police and the Magistrate. No circumstances
whatsoever exist to justify the cognizance taken afresh on the basis of
the subsequent complaint, contends the learned counsel for the
petitioners.
6. The learned counsel for the first respondent on the contrary
submits that entertainment of a second complaint by a Magistrate, who
has earlier accepted a refer report submitted by the police or had earlier
dismissed a complaint under Section 203 Cr.P.C., is not anathema to
law and in a proper case such second complaint can be entertained,
notwithstanding the earlier acceptance of the refer report submitted by
the police and the later dismissal of the complaint under Section 203
Cr.P.C. on merits. Counsel relies on the decisions in Mahesh Chand
v. Janardhan Reddy ((2003) 1 SCC 734) and Poonam Chand Jain
v. Fazru (2005 Crl.L.J. 100).
7. I have no quarrel with the proposition that a second complaint
can be entertained by the learned Magistrate if sufficient circumstances
Crl.M.C.No. 900 of 2007
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do exist to justify the entertainment of such a later complaint. In the
instant case the earlier complaint has been dismissed on merits. An
attempt was made unsuccessfully to challenge the dismissal of the
complaint under Section 203 Cr.P.C. In these circumstances it does
not lie in the mouth of the complainant/respondent that there has been
no proper consideration of the complaint. The order passed by the
learned Magistrate under Section 203 Cr.P.C., a copy of which is
produced as Annex.A3, clearly shows that the relevant circumstances
have been adverted to by the learned Magistrate.
8. Undaunted, the learned counsel for the first respondent
submits that the complainant had come to know of subsequent facts,
which in any event justifies the filing of a subsequent complaint and
entertainment of such complaint by the learned Magistrate.
9. What is the subsequent circumstance? The learned counsel
submits that in the agreement with Shaji Rs.10,000/- towards sale
consideration of Rs.75,000/- was paid as earnest money deposit
initially. Within two days the balance amount of Rs.65,000/- was paid
and the entire sale consideration was paid. This fact – of subsequent
payment of Rs.65,000/- – was suppressed and the complainant came to
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know of this fact only later when the civil court passed Annex.A2
decree in O.S.1505 of 2000. The judgment in that case, though not
produced along with the Crl.M.C., a copy of the same has been placed
before me. The learned counsel for the respondent contends that in as
much as the complainant came to know of receipt of the entire sale
consideration by the petitioners within two days of the agreement only
later after the judgment in the civil suit was pronounced, the
complainant is justified in filing a renewed complaint after the decree
was passed.
10. The learned counsel for the petitioners stoutly opposes this
contention and points out that in Annex.A5 complaint i.e. the initial
complaint which was dismissed under Section 203 Cr.P.C., very
specific allegation was raised that the complainant had come to know
that the entire sale consideration had been paid. I have been taken
through the relevant averments in Annex.A5. In paragraph 4 of the
said complaint it has been unambiguously averred that the entire sale
consideration had been paid and received by the petitioners when they
entered into the agreement with the defacto complainant.
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11. I am, in these circumstances, satisfied that the respondent/
defacto complainant is not entitled to any benefit or advantage
emanating from the decisions referred above. No new circumstance
has come to the notice of the complainant subsequent to the dismissal
of the private complaint under Section 203 Cr.P.C. The mere fact that
that circumstance – payment of Rs.65,000/- is confirmed by the
judgment and decree of the civil court cannot justify the entertainment
of a renewed complaint by the court below, which had already
dismissed such complaint earlier under Section 203 Cr.P.C. I am in
these circumstances satisfied that the petitioners are entitled to be
reliefs prayed for.
12. This Crl.M.C. is allowed. The cognizance taken against the
petitioners by the learned Magistrate in C.C.539 of 2004 is hereby
quashed.
(R. BASANT)
Judge
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