IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1931 of 2008()
1. N.RAMARAJ,S/O.NARAYANAN NAIDU,
... Petitioner
2. R.PREMAVATHY,W/O.R.NARAYANAN NAIDU,
Vs
1. MADHUSUDHANAN,S/O.CHURULLIYIL RAMAN,
... Respondent
2. STATE OF KERALA REP.BY THE PUBLIC
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/11/2008
O R D E R
THOMAS P.JOSEPH, J.
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CRL.M.C. No.1931 of 2008
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Dated this the 13th day of November, 2008
O R D E R
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Prayer in this petition is to quash Annexure A complaint
filed by the first respondent in the court of Judicial First Class
Magistrate, Irinjalakuda against petitioners for offences
punishable under Sections 406, 417, 420 and 468 read with 34
of the Indian Penal Code (for short, “the Code”). Petitioners who
are the accused have come to this Court under Section 482 of
the Code of Criminal Procedure (for short, “Cr.P.C.”).
2. Heard both sides.
3. First respondent filed complaint alleging that his
brother-in-law was engaged in some business in the building
bearing Sy.No.160/1 of Irinjalakuda Village and while so, one
Anilkumar informed him that petitioners are intending to sell
the said building and 2.5 cents of land abutting the P.W.D. road.
On 23.9.2002 petitioners and first respondent entered into an
agreement as per which first respondent agreed to purchase the
land and building for a total consideration of Rs.2,05,000/-.
Petitioners received Rs.50,000/- on that day. A period of 18
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months was fixed for execution of the sale deed. Petitioners had
undertaken to evict the tenants from the building before execution of
the sale deed and to discharge all encumbrance in the property. It
was also agreed that incase there is any delay in effecting execution,
period of agreement could be extended. On 10.1.2003, petitioners
took a further sum of Rs.35,000/- from the first respondent and
endorsed that fact on the back of the agreement. On 12.7.2004
another agreement was executed between the parties stating that
Rs.85,000/- was taken as advance. On 22.11.2004 petitioners took a
further sum of Rs.40,000/- from the first respondent by way of advance
and made an endorsement to that effect on the back of the
agreement. In May, 2005 first petitioner told the first respondent
that he is involved in a love marriage and is not able to reside with his
family members and that he is not able to discharge the liability of
Rs.8,00,000/- over the property agreed to be sold and hence a fresh
agreement could be executed between the parties. On 16.6.2005
another agreement was executed between the parties stating that
Rs.1,25,000/- was taken by the petitioners as advance from the first
respondent. First respondent signed that agreement and handed
over the same to petitioner No.2 to obtain the signature of petitioner
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No.1. That was done as per the instruction of the first respondent.
But that agreement was not returned to the first respondent wilfully
to make it appear that since petitioners are in custody of that
agreement, liability under the agreement has been discharged by
cancellation of the agreement itself. Petitioners retained that
agreement putting a different date beneath their signature. Thus
petitioners cheated the first respondent and fabricated the document.
4. Learned magistrate initially dismissed the complaint
observing that what is involved is a civil dispute. That order was
challenged by the first respondent in this Court in Crl. R.P. No.2918 of
2006. A learned Single Judge of this Court by order dated 24.11.2006
set aside the order dismissing the complaint and remitted the matter
to the learned magistrate for fresh consideration after taking into
account the entire averments in the complaint and the sworn
statement of the complainant and C.W.2. First respondent was given
liberty to examine other witnesses if any, in support of the averments
in the compliant. After remand, no further evidence was let in by the
first respondent. Learned magistrate considered the complaint, sworn
statement of the first respondent and C.W.2 and took cognizance for
the offences under Sections 406, 417, 420 and 468 read with 34 of the
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Code. Petitioners are aggrieved and request this Court to exercise the
power under Section 482 Cr.P.C. to quash the complaint.
5. Counsel for the petitioners placed reliance on the
decisions in Hotline Teletubes and Components Ltd. v.
State of Bihar (2005) 10 SCC 260 and Muralilal Gupta v.
Gopi Singh (2005) 13 SCC 699). Counsel contended that even if
the entire averments in the compliant are accepted, no offence under
the Code is made out it being purely a civil dispute for failure of
petitioners to honour the alleged agreement for sale. It is further
contended that at any rate, sworn statement of the first respondent or
C.W.2 does not disclose any offence. Learned counsel for the first
respondent supported the finding of the court below.
6. For taking cognizance averments in the complaint and
sworn statement of complainant and witnesses if any, have to be
considered. Therefore, merely based on the sworn statement of the
first respondent and C.W.1 alone, petitioners cannot justifiably urge
this Court to invoke the power under Section 482 Cr.P.C. and quash
the complaint.
7. In short what is alleged in the complaint is that with the
intention of cheating the first respondent petitioners entered into an
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agreement with the petitioners, received substantial sum out of the
sale consideration as advance and avoided execution of the sale
deed. It is also that ultimately, the renewal agreement was got into
the custody of petitioners under the guise of obtaining signature of
first petitioner, but petitioners put a different date beneath their
signatures and refused to return that agreement to the first
respondent to make it appear that liability under that agreement was
discharged by cancellation of the agreement itself as evidenced by the
fact that petitioners are in custody of the agreement which created
liability on them. According to the first respondent, attempt of the
petitioners was to cheat him. On going through the averments in the
complaint it is difficult to say that what is made out is only a civil
liability for specific performance of the alleged agreement for sale. I
am satisfied that so far as the offences punishable under Sections 417
and 420 of the Code are concerned, learned magistrate was correct in
taking cognizance on the materials available.
8. So far as offence under Section 406 of the Code is
concerned, first respondent had to show that there was criminal
breach of trust. Criminal breach of trust is defined in Section 405 of
the Code. The essential ingredient is that the accused, being in any
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manner entrusted with property or with any dominion over property
dishonestly misappropriates the said property or converts it to his own
use or dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is to be
discharged. According to the first respondent, agreement executed on
16.6.2005, signed by him and entrusted to second petitioner to obtain
signature of first petitioner was not returned. But it is difficult to say
that petitioners dishonestly misappropriated or converted any
property to their use or dishonestly used or disposed of any property
(here, the agreement) as contemplated in Section 405 of the Code.
Therefore, there was no sufficient material for taking cognizance for
the offence punishable under Section 406 of the Code.
9. Now I shall refer to the offence alleged to be committed
and punishable under Section 468 of the Code. Forgery is defined in
Section 463 of the Code. It involves making of false documents,
among other things. Making of false documents is defined in Section
464 of the Code. It involves doing of any of the acts enumerated in
clauses (a) to (d) with the intention of causing it to be believed that
such document or part of the document, etc., is executed by a person
by whom or by whose authority the maker knows has not made it. In
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this case the allegation in Annexure A complaint to attract the offence
under 468 of the Code is that petitioners put a different date beneath
their signatures in the agreement dated 16.6.2005. That case
comes under clause secondly of Section 464 of the Code. Putting a
different date than the date of execution of the document fraudulently
to make it appear that the document was executed on a different date,
if it is for the purpose of cheating amounts to offence punishable
under Section 468 of the Code.
10. In the light of what I have stated, Annexure A complaint to
the extent it related to the offence under Section 406 read with 34 of
the Code and consequent proceedings in respect of that offence are
liable to be quashed. There is however, no reason to interfere with
the order of the learned magistrate taking cognizance for the offences
punishable under Section 417, 420 and 468 read with 34 of the Code.
This petition is therefore disposed of in the following lines:
(a) Annexure A complaint and all
consequent proceedings to the extent it related to
the offence punishable under Section 406 read with
34 of the Code are quashed.
(b) This petition to the extent it related to CRL. M.C. No.1931 of 2008 -: 8 :- the offences punishable under Sections 417, 420 and 468 read with 34 of the Code is dismissed. (c) Learned magistrate shall proceed with the case to the extent it concerned the offences
punishable under Sections 417, 420 and 468 read
with 34 of the Code and dispose of the same as
provided under law untrammelled by any of the
observations contained in this order.
Criminal Miscellaneous Application No.2651 of 2008 shall stand
dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
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