Abdul Nazar v. State of Kerala and Susmita and The Sub Inspector of Police, Nenmara Police Station

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939 Crl.MC.No. 4154 of 2013 --------------------------CRIME NO. 1063/2013 OF NENMARA POLICE STATION , PALAKKAD ## PETITIONER/1ST ACCUSED: ------------------------- ABDUL NAZAR, AGED 40 YEARS, S/O. M. ABDUL RAHIMAN, MEHRIN MANZIL, POTHUVAI ROAD, NEAR PRABHA ENGLISH MEDIUM SCHOOL, AYLOOR, P.O., PALAKKD DISTRICT. BY ADVS.SRI.C.J.JOY SMT.VALSAMMA KURIAN JOSE RESPONDENT(S)/RESPONDENT: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, NENMARA POLICE STATION, PALAKKAD DISTGRICT-678 508. (CRIME NO. 1063/2013 OF NENMARA POLICE STATION) 3. SUSMITA, W/O. JIJI.C.P., CHARAKKEKUNNEL VEEDU,PAZHATHARAKKADU, VITHANASSERY.P.O., NENMARA, PALAKKAD DISTRICT.-678508 R3 BY ADV. SRI.JACOB SEBASTIAN R1 BY PUBLIC PROSECUTOR SMT. MAYA M.N. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.1.2017, THE COURT ON 20-07-2017 PASSED THE FOLLOWING: Crl.MC.No. 4154 of 2013 --------------------------- ## APPENDIX ## ANNEXURES ----------------------- ANX.A1. CERTIFIED COPY OF THE FIR IN THE CRIME NO. 1063/13 DATED 30-82013 OF NENMARA POLICE STATION REGISTERED BY THE 2ND RESPONDENT AGAINST THE PETITIONER AND 3 OTHERS. ANX.2. TRUE COPY OF THE EX-SERVICEMAN CARD ISSUED TO THE PETITIONER BY THE JILLA SAINIK WELFARE OFFICER, PALAKKAD. ANX.3 TRUE COPY OF THE SALE DEED NO. 2482/2011 DATED 2-4-2011 OF NENMARA SRO EXECUTED IN FAVOUR OF THE 3RD RESPONDENT. ANX.A4. TRUE COPY OF THE SALE DEED NO. 2487/2011 DATED 19-9-2011 EXCITED BY THE 3RD RESPONDENT IN FAVOUR OF THE PETITIONER. ANX.A5 TRUE COPY OF THE SALE DEED NO. 3271/2012 DATED 22-9-2012 EXECUTED BY THE PETITIONER IN FAVOUR OF ONE BALAN. ANNEX A6 TRUE COPY OF THE MORTGAGE AGREEMENT DATED 22.9.2012 ANNEX A7 CERTIFIED COPY OF THE FINAL REPORT FILED IN CRIME NO.1063/2013 OF NENMARA POLICE STATION. //True Copy// P.S.To Judge ## **A.M.BABU, J.** - - - - - - - - - - - - - - - - - - - - Crl.M.C.4154 of 2013 - - - - - - - - - - - - - - - - Dated : 20[th] July, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.A criminal prosecution is sought to be quashed under Sec.482 of Cr.P.C. 2.Crime no.1063/2013 of Nenmara police station was registered on the basis of the first information statement given by the 3[rd] respondent herein. Annex-A1 is the copy of the FIR together with the first information statement. The FIR was registered against four persons. Petitioner is the 1[st] accused. The case was registered under Secs 406 and 420 of IPC, Secs 13 and 17 of the Kerala Money Lenders Act and Sec.9 of the Kerala Prohibition of Charging Exorbitant Interest Act. The Crl.M.C was filed requesting to quash annex-A1 FIR to the extent it related to the petitioner. This court on 25.9.2013 as per the order in Crl.M.A.7485/2013 passed an interim order directing stay of all further proceedings pursuant to annex-A1 FIR. 2 ## **Crl.M.C.4154/13** The interim stay was vacated on 4.3.2015. This court permitted to proceed with the investigation. Accordingly investigation was conducted and charge-sheet was filed. It was filed under Secs 406 and 420 of IPC read with IPC 34. Annex-A7 is the copy of the chargesheet. Thereupon the memorandum of Crl.M.C was amended to modify the relief. The relief the petitioner now seeks is to quash annex-A7 charge-sheet. - 3.Heard the learned counsel for the petitioner and the learned counsel for the 3[rd] respondent. Heard the learned public prosecutor who appears for respondents 1 and 2. - 4.The prosecution case goes as follows : The 3[rd] respondent was in need of money as she had no funds for the treatment of her mother who was suffering from cancer. Therefore the 3[rd] respondent approached the 2[nd] accused for a loan. The latter offered to arrange funds **Crl.M.C.4154/13** 3 provided the former was prepared to execute a sale deed in respect of her 3.14 cents of land wherein situated her house. Within two days the 2[nd] accused and two real estate brokers, viz. accused 3 and 4, brought the petitioner. The petitioner agreed to advance Rs.2.5 lakhs on condition that the 3[rd] respondent would register a sale deed in respect of the said property in favour of the petitioner. It was also a condition that Rs.12,500/- should be paid as interest every month till the amount of Rs.2.5 lakhs was repaid. The petitioner agreed to reconvey the property to the 3[rd] respondent on repayment of the amount borrowed by her. Accordingly a sale deed was executed and registered on 19.9.2011. The 3[rd] respondent received the money and paid Rs.10,000/- each to accused 3 and 4 as brokerage. On the same day the 2[nd] accused borrowed Rs.1.25 lakhs from the 3[rd] respondent undertaking to return it in two days. But the amount was not returned. The 3[rd] respondent paid Rs.12500/- per month to the **Crl.M.C.4154/13** 4 petitioner for 11 moths. Thereafter she could not pay the interest. When the interest was defaulted for four months, the petitioner had taken the signatures of the 3[rd] respondent on blank stamp papers and ousted her from the house. She knew later that her property was sold by the petitioner to another person. The 3[rd] respondent sustained a loss of Rs.8,00,000/-. 5.The petitioner denies all the allegations against him. He contends as under : He got information from accused 2 to 4 that the 3[rd] respondent had offered her property for sale. The petitioner approached the 3[rd] respondent and agreed to the price demanded by her. The property which the 3[rd] respondent purchased under annex-A3 sale deed was purchased by the petitioner under annex-A4 sale deed for the price shown therein. The sale in his favour is a genuine sale. He retained the property with him for one year and sold it to one Balan under 5 ## **Crl.M.C.4154/13** annex-A5 sale deed. The petitioner did not commit the offences alleged against him. 6.The rival contentions of the parties show that the facts are not admitted except the execution of annex-A4 sale deed by the 3[rd] respondent in favour of the petitioner. There are two versions. If the version of the petitioner is true, he is safe. But if the version of the 3[rd] respondent is true, there may be an element of cheating attracting Sec.420 of IPC. Which version is true is not a matter for consideration in a proceedings under Sec.482 of Cr.P.C. The Crl.M.C is liable to fail on this short ground. - 7.The petitioner has raised several grounds to get the criminal prosecution against him quashed. I shall consider those grounds one by one. - 8.The petitioner contends that he served the **Crl.M.C.4154/13** 6 Indian army for 16 years. Annex-A2 is the identity card (ex-service) issued to him from the army. He states that he was discharged from the army on 1.9.2011 and that he reached his native place on 4.9.2011 only. Therefore, according to him, he cannot be presumed to be indulged in money lending business. He states so since the FIR was registered against him under the provisions of the Kerala Money Lenders Act and the Kerala Prohibition of Charging Exorbitant Interest Act. Annex-A7 final report was filed excluding those provisions and confining to Secs 406 and 420 of IPC. Therefore the said ground of the petitioner has become insignificant. 9.According to the petitioner, the allegations against him cannot be true as Jiji who is the husband of the 3[rd] respondent had signed annexA4 and annex-A5 sale deeds as a witness. AnnexA4 is the sale deed executed by the 3[rd] respondent in favour of the petitioner. In it **Crl.M.C.4154/13** **==> picture [7 x 9] intentionally omitted <==** the said Jiji is not a witness. A person by name Chandran and another by name Musthafa are the witnesses therein. But Jiji's name appears as a witness in annex-A5 sale deed executed by the petitioner in favour of Balan. The impact of Jiji signing annex-A5 as a witness and the circumstances under which he signed it as a witness are matters for evidence. Those are matters for the trial court to consider if that court decides to frame charge against the petitioner. Those matters cannot be considered by this court in a proceedings under Sec.482 of Cr.P.C. This court in this proceedings cannot conclude that the allegations against the petitioner are false simply because Jiji signed annex-A5 as a witness. And, Jiji signing annexA5 is not an admitted fact. - 10.The petitioner contends that in view of annexes-A1 to A5 his version is more probable. Such a mere probability is not sufficient to quash the charge-sheet. Materials are wanting 8 ## **Crl.M.C.4154/13** for this court to find that the allegations against the petitioner are per se false. - 11.According to the petitioner, the 3[rd] respondent and her mother were not on good terms. It is contended that the mother was living with the father of the 3[rd] respondent and not with her. Another contention is that the mother of the 3[rd] respondent was not suffering from cancer. The above are also disputed facts. Those contentions are also matters for evidence. - 12.The petitioner states that the first information statement was given and the FIR was registered two years after the execution of annex-A4 sale deed by the 3[rd] respondent and one year after the execution of annex-A5 sale deed by the petitioner. The delay in lodging the first information statement cannot be a ground to quash a criminal prosecution. There are explainable delays. It need be explained only at the trial. The petitioner contends that the **Crl.M.C.4154/13** 9 delay is not explained in the first information statement. It cannot be insisted on that the delay should be explained in the first information statement itself. It is so particularly in a case where Sec.468 of Cr.P.C has no application. The punishment provided for an offence under Sec.420 of IPC is upto seven years. As such, no period of limitation is prescribed. 13.Although not taken as a ground in the memorandum of Crl.M.C, the learned counsel for the petitioner submitted that as per annex-A6 the husband of the 3[rd] respondent had taken the property in question on lease from Balan who purchased the property from the petitioner. The transaction recited in the unregistered annexA6 document is not lease, but mortgage. Whatever it be, annex-A6 is not an admitted document. The learned counsel for the 3[rd] respondent and the learned public prosecutor have submitted that annex-A6 is a disputed ## **Crl.M.C.4154/13** **==> picture [13 x 9] intentionally omitted <==** document. The learned counsel for the petitioner cannot advance an argument in a proceedings under Sec.482 of Cr.P.C on the strength of a disputed document. - 14.Another argument of the petitioner's learned counsel was that the 3[rd] respondent did not yet choose to file a civil suit to establish her title to the property in question. That need not necessarily mean that her version is false. Her failure to file a suit is not a ground to quash the charge-sheet. If her allegations are true, can she file a suit before she repays Rs.2.5 lakhs ? - 15.The learned counsel for the 3[rd] respondent has cited two decisions of this court. The decisions are Kurien v. Renjitha (2000 (1) KLT 388) and S.Ramakrishna Sharma v. Inspector of Plantations (2008 (1) KHC 392). The former decision holds that the High Court is not entitled in a proceedings under Sec.482 of **Crl.M.C.4154/13** 11 Cr.P.C to go into the documents produced by the petitioner in support of his various contentions which are available for him as defence in the case in which he is the accused. It is held in the latter decision that even the trial court at the hearing under Sec.239 of Cr.P.C cannot look into the documents produced by the accused. The learned counsel for the petitioner relied on the Supreme Court in Rajiv Thapar v. Madan Lal Kapoor (2013 Crl.L.J 1272). The question considered in the said decision is whether in a proceedings under Sec.482 of Cr.P.C the High Court can consider the materials produced by the accused. The Supreme Court holds that the material produced by the accused can be taken into account, provided such material would rule out and displace the assertions contained in the charges levelled against the accused. The petitioner did not produce any such material in the present case. The documents produced by him are not sufficient to reject the case of the 12 ## **Crl.M.C.4154/13** prosecution. Annex-A6 agreement is a disputed document. Annex-A4 sale deed may or may not be executed in the circumstances stated by the 3[rd] respondent. Evidence is required to get a clear picture. - 16.The learned counsel for the petitioner relied on the decision in Gulati v. State of Uttar Pradesh [(2015) 4 SCALE 373]. It was held that courts should not allow litigants to file vexatious complaints by setting criminal law into motion. That was a case where the accused in a case under Sec.138 of the Negotiable Instruments Act filed a complaint against the complainant as a counterblast. The decision is not helpful to the petitioner since materials are wanting to find that the allegations against him are inherently false. - 17.Another decision relied on by the petitioner is M/s Pepsi Foods Ltd v. Special Judicial Magistrate (AIR 1998 SC 128). In that case a **Crl.M.C.4154/13** 13 complaint filed under the provisions of the Prevention of Food Adulteration Act was quashed holding that the complaint did not show what was the role of the accused in the manufacture of the beverage which was alleged to be adulterated. In the present case, as already seen, there are sufficient allegations in the first information statement and the chargesheet against the petitioner. - 18.Yet another decision cited on petitioner's side is K.Ramakrishna v.State of Bihar (AIR 2000 SC 3330). The apex court quashed the final report since the same, the FIR and all other documents relied on by the prosecution did not make out a case against any of the accused persons. Here it is not so. Therefore the said decision is also not helpful to the petitioner. - 19.The learned counsel for the petitioner relied on the following decisions as well ; (i) State of Gujarat v. Jaswantlal Nathalal (AIR 1968 SC **Crl.M.C.4154/13** 14 700), (ii) Sadhupati Nageswara Rao v. State of A.P. (AIR 2012 SC 3242), (iii) K.C.Thomas v. Avirah Varghese (1974 Crl.L.J 207) and (iv) State of Kerala v. A. Pareed Pillai (AIR 1973 SC 326). In the first two decisions referred to above what is considered is as to what are the essential ingredients of criminal breach of trust. The Supreme Court considered in both the decisions whether the evidence produced by the prosecution proved the essential ingredients. This court cannot go that deep into the matter before evidence is recorded. The other two decisions referred to above hold that in the case of cheating the dishonest intention starts with the very inception of the transaction. That too is a matter for the prosecution to prove at the trial if the trial court decides to frame charge. Whether the petitioner had such an intention at the very inception cannot be decided in this proceedings. ## 20.The learned counsel for the petitioner ## **Crl.M.C.4154/13** **==> picture [13 x 9] intentionally omitted <==** submitted that the offences under Secs 406 and 420 of the IPC would not go together. It is not proper to enter any finding on the said submission in this proceedings. The petitioner may agitate it before the trial court at the appropriate stage. - 21.The Crl.M.C is devoid of merit. It fails. It deserves only a dismissal. ## 22.Dismissed. **Sd/A.M.BABU Judge** Mrcs/17.7 //True Copy// P.S.To Judge