IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 133 of 2007()
1. SUMANGALA, D/O. KRISHNAN KUTTY,
... Petitioner
2. SHANTHKUMARI, D/O. VELLAPALLI
3. BALAKRISHNAN, S/O. CHOYIKUTTY KURUP,
Vs
1. P.V.PRAKASAN, S/O. APPU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.RAJESH NAMBIAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/07/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No. 133 OF 2007
===========================
Dated this the 13th day of July,2009
ORDER
Petitioners are the accused in C.C.324/2006 on the
file of Judicial First Class Magistrate Court-V,
Kozhikode taken cognizance by the learned Magistrate on
Annexure A complaint filed by the first respondent.
The case of the first respondent in Annexure A
complaint is that petitioner had agreed to assign 34
cents of property in R.S.No.63/1 and 2 of Beypore
Village for a total consideration of Rs.9 lakhs and as
it was represented that liability of Rs.5 lakhs in
favour of Kerala Financial Corporation is outstanding
first respondent paid Rs.9 lakhs as the advance
consideration and though petitioners agreed to execute
a sale deed after getting liability on the Kerala
Financial Corporation discharged, petitioner did not
discharge the liability or execute the sale deed. It
is alleged that with the intention to cheat,
petitioners dismantled the machineries and sold its
parts and substituted them with cheap parts and the
intention is only to cheat and therefore petitioners
Crl.M.C.133/2007 2
committed the offence under section 420 read with section
34 of Indian Penal Code. Alleging breach of the terms of
the agreement for sale in respect of very same transaction,
first respondent had instituted O.S.73/2005 before II
Additional Sub Court, Kozhikode which was later dismissed
under Annexure D judgment after recording the evidence. It
is submitted that an appeal is pending before this court
challenging that judgment.
2. Petitioners filed this petition under section 482
of the Code of Criminal Procedure to quash the proceedings
contending that continuation of the proceedings is only an
abuse of process of court. It is contended that there was
no agreement for sale at all and the Civil Court has
already found that there was no agreement for sale and
therefore the very foundation of the case is unsustainable.
It is also contended that on the allegations in the
complaint, petitioners cannot be prosecuted and therefore
it is to be quashed.
3. Learned counsel appearing for the first respondent
argued that the allegations in the complaint makes out an
offence under section 420 of Indian Penal Code. The fact
that in respect of the same transaction, for realisation of
the amount due, first respondent instituted a suit and that
suit was dismissed is not fatal when an appeal is pending
Crl.M.C.133/2007 3
and so long as the allegations in the complaint reveal
ingredients of an offence under section 420 IPC, it cannot
be quashed. Learned counsel also argued that Annexure D
judgment cannot be looked into as it does not satisfy
Section 41 of the Indian Evidence Act.
4. If the allegations in Annexure A complaint as such
is accepted, the ingredients of an offence is not made out
petitioners are entitled to get the complaint quashed. The
question is whether the ingredients of an offence is made
out.
5. A reading of Annexure A complaint only disclose
that petitioners agreed to assign 34 cents of the property
in R.S.No.63/1 and 2 of Beypore Village inclusive of the
Bakery Unit, its machineries, vessels and other articles,
for a total consideration of Rs.9 lakhs and towards its
consideration Rs.9 lakhs was paid as advance. The
complaint does not disclose whether the agreement for sale
is oral or documentary. Even the exact date of the alleged
agreement is not mentioned. Even if it is taken that there
was an agreement for sale and as against the terms of the
agreement, after receiving the consideration, petitioners
did not execute the sale deed and instead dismantled the
machinery and sold its parts and substituted with cheap
parts, the question is whether an offence under section 420
Crl.M.C.133/2007 4
of Indian Penal Code is made out. In order to attract an
offence under section 420 of Indian Penal Code first
respondent has to plead and establish that at the time when
he was made to part Rs.9 lakhs, petitioners have a
dishonest intention to cheat. Any subsequent cheating or
subsequent intention, will not attract an offence under
section 420 of Indian Penal code. There is absolutely no
allegation in Annexure A complaint that at the inception
petitioners had a dishonest intention to cheat. Though
there is an allegation that subsequently, with the
dishonest intention they did not clear the liability to the
Kerala Financial Corporation or did not execute the sale
deed and also dismantle the parts of the machinery and sold
the same, in the absence of a case that there was a
dishonest intention at the time when petitioners allegedly
agreed to sell the property and induced first respondent
to part with Rs.9 lakhs, an offence under section 420 IPC
is not attracted. If that be so, continuation of the
proceedings as against the petitionersis only an abuse of
process of court. For that reason, petition is to be
allowed. C.C.324/2006 on the file of Judicial First Class
Magistrate Court V, Kozhikod is quashed. Learned counsel
appearing for the petitioners, submitted that this order
may not operate against the petitioners in canvassing their
Crl.M.C.133/2007 5
case in the existing first appeal. On the merit of the
civil suit nothing has been stated in the petition and this
order will not affect their right.
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