Abdul Razak v. Renjith, Anandan, Darmapalan and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 ``` ## **`CRL.MC NO. 2820 OF 2022`** ## **`CRIME NO.3004/2014 OF Thrissur EAST POLICE STATION`** ## **`PETITIONER/3RD ACCUSED:`** ``` ABDUL RAZAK AGED 71 YEARS S/O. S.M IBRAHIM, HMC NAGAR, KOORKKANCHERRY P.O, THRISSUR., PIN - 680007 BY ADVS. BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ AJWIN P LALSON KARUKAPADATH WAZIM BABU P.LAKSHMI AISWARYA ANN JACOB ``` ## **`RESPONDENTS/COMPLAINANT, ACCUSED 1 AND 2 AND STATE:`** ``` 1H. RENJITH AGED 65 YEARS S/O. HARIDAS, C.V.R.A-13, EDAPALLY SOUTH VILLAGE KANAYANOOR TALUK, EDAPALLY P.O, ERNAKULAM., PIN - 682041 2ANANDAN AGED 72 YEARS S/O. KOCHUKANNAPPAN, NAVANEETHAM HOUSE, VAZHOOR, LOKAMALLESWARAM VILLAGE, KODUNGALLUR P.O, THRISSUR., PIN - 680664 3DARMAPALAN AGED 77 YEARS S/O. RAMAKRISHNAN, VYKATTIL HGOUSE, VELIYANNOOR, THRISSUR., PIN - 680021 4STATE OF KERALA STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, EAST POLICE STATION, THRISSUR., PIN - 680001 ``` ``` CRL.MC NO. 2820 OF 2022 ``` ``` 2 ``` ``` BY ADVS. VISHNU JAYAPALAN VINAY VIJAY SHANKER(K/668/2018) ANU BALAKRISHNAN NAMBIAR(K/936/2014) ``` ## **`OTHER PRESENT:`** ``` SRI RENJITH TR, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2820 OF 2022 ``` ``` 3 ``` ## **P.V.KUNHIKRISHNAN, J.** ======================================= Crl.M.C No. 2820 of 2023 ======================================= Dated this the 17[th] day of November, 2023 ## **ORDER** The petitioner is the 3[rd] accused in CC No.528 of 2015 on the file of the Chief Judicial Magistrate Court, Thrissur, which arose from Annexure A1 private complaint filed by the 1[st] respondent. The complaint was filed alleging offences punishable under Sections 415, 420, 120B, 464, 466, 468 read with 34 IPC. It is the case of the petitioner that with respect to the same transaction and allegation, the same complainant had filed another complaint before the Enquiry Commissioner and Special Judge, Thrissur and the vigilance investigation with respect to the same is pending as evident by Annexure A2. It is the case of the petitioner that as evident by Annexure A5 another complaint filed by the very same complainant with respect to the same transaction, the police had dropped the proceedings and the learned Magistrate accepted the same. ``` CRL.MC NO. 2820 OF 2022 ``` ``` 4 ``` 2. It is also stated that as per Annexure-A7 order, this Court quashed the case against some of the accused and held that the proceedings in CC No.582/2015 is an abuse of process of court. The allegation of the 1[st] respondent in nutshell is that his wife Shylaja and her sister Shobana had obtained 15 cents each and their mother Bhargavi had obtained 69 cents in 1967. It is stated that the complainant as the legal guardian appointed by this Court has obtained a preliminary decree for partition in O.S. No.294/2018 on the file of the Sub Court, Thrissur. The said suit for partition was pending, brother of his wife Mahendra Madhavan instituted a suit as O.S No.1217/2010 before the Munsiff Court. It is the case of the petitioner that on further enquiry it was revealed that on the basis of the conspiracy, the legal heirs of Dr.Narayana Pisharady were permitted to pay land tax for 30 cents and a sale agreement was also executed. Hence it is alleged that the accused committed the offence. 3. Heard the learned counsel for the petitioner and also the learned counsel appearing for the respondents 1 to 3. I ``` CRL.MC NO. 2820 OF 2022 ``` ``` 5 ``` have also heard the learned Public Prosecutor for the 4[th] respondent. 4. A perusal of Annexure-A7 order would show that the case against the petitioner need not be continued. It will be better to extract Annexure A7 order:- “The order framing charge for the offence under Sections 415, 420, 120 B, 464, 465, 468 r/w Section 34 1PC after the dismissal of discharge application is brought under challenge by accused No.2 in Crl.M.C.Nos.3127/2020 and 1084/2021. The accused No.1 also came up against the said order in Crl.R.P.No.311/2020. The accused No.1 is the owner of adjoining property. The defacto complainant is the husband and court guardian of his wife appointed in O.P. (MH) No. 86/2007 of the District Court, Ernakulam. It is submitted that he was appointed as the court guardian after entering into a finding that she is capable of doing her things personally. But he was appointed as the Manager of the properties belonged to her. An appeal is pending against the said order. About 99 cents of property originally belonged to mother-in-law of the defacto complainant. Out of the said property, 15 cents given to the wife of defacto ``` CRL.MC NO. 2820 OF 2022 ``` ``` 6 ``` complainant When the property was measured out, the total extent found to be lesser than what is stated in the document of title. So a claim was raised over the adjoining property belonged to accused which was purchased by them from some other person, for which a crime was registered in Crime No. 3004/2014 alleging offence under Sections 415, 420, 120B, 464, 465, 468 r/w Section 34 IPC at the instance of the defacto complainant, the husband, that too, without any valid reason. The police after investigation submitted a referred charge. Yet another complaint was also filed (Annexure A2) before the Magistrate in connection with the very same transaction and on the very same allegation on which the learned Magistrate took cognizance overlooking all settled principles. It is seemed to be so strange that in connection with the mutation effected based on the sale deed in favour of the accused persons, the defacto complainant, the husband opted to file a criminal complaint before the vigilance court which was referred under Section 156(3) Cr.P.C. for investigation. Thereby, the defacto complainant, husband had misused the machineries and process of the court simply to wreck vengeance without any valid ground. ``` CRL.MC NO. 2820 OF 2022 ``` ``` 7 ``` From the facts involved, even an arguable case or a debatable civil dispute not brought out. Instead of seeking civil remedy, the defacto complainant opted to misuse the process of the court and the machinery - the police department. Filing of complaint before the vigilance court in connection with the mutation effected based on the document of title of the accused would show the manner in which the defacto complainant tries to entangle the accused No.1 and 2 in a criminal proceeding, that too, without any basis. The mischievous intention оп the part of the defacto complainant is well evident. Further, the registration of crime for the offence under Sections 415, 420, 120 В, 465, 468 r/w Section 34 1PC and the subsequent complaint would also show the extent of misuse done by the defacto complainant, the husband simply to wreck vengeance against the accused No.1 and 2. Hence, he cannot be allowed to go with free hand and it is a fit case wherein exemplary cost can be imposed by exercising the inherent Cr.P.C.. power under Section 482 Cr.P.C. The legal position is very much settled by the Apex Court in Mary Angel and others v. State of Tamil Nadu (AIR 1999 SC 2245) and Ismile and others v. State of Rajasthan ``` CRL.MC NO. 2820 OF 2022 ``` ``` 8 ``` and others (1998 CRI.L.J. 3703). Hence, it is ordered to pay an amount of Rs.10,000- (Rupees Ten thousand) each as exemplary cost to the accused Nos.1 and 2 by the defacto complainant, who is the first respondent in Crl.M.C.No.3127/2020 and it shall be paid within a period of three months from today, failing which it shall be recovered as if it were a fine imposed under the provisions of the Code of Criminal Procedure, in default he shall undergo default sentence of simple imprisonment for a period of twenty days. 2. The Registry shall forward a copy of this order to the concerned Magistrate. The Magistrate shall initiate proceedings against 1[st] respondent to recover the exemplary cost in accordance with the provisions of the Code of Criminal Procedure, if it is not remitted within the time stipulated above. In the event of non- recovery of the said amount, he shall undergo default sentence as ordered above and the learned Magistrate shall take steps in that behalf. Crl.M.C.Nos. 3127/2020, 1084/2021 and Crl.R.P. No.311/2020 are allowed accordingly.” ``` CRL.MC NO. 2820 OF 2022 ``` ``` 9 ``` 5. From the above, it is clear that the case against the petitioner also will not stand and the petitioner is also entitled the same benefit. Much discussion is not necessary in the light of Annexure-A7 order, which according to the petitioner is confirmed by the Supreme Court also. In such circumstances, the proceedings against the petitioner can be quashed. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner alone in CC No.528/2015 on the file of the Chief Judicial Magistrate, Thrissur are quashed. Sd/- ## **`P.V.KUNHIKRISHNAN JUDGE`** das/ska ``` CRL.MC NO. 2820 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 2820/2022`** ## `PETITIONER ANNEXURES` - `Annexure A1 TRUE COPY OF THE COMPLAINT IN CC NO. 528/2015 FILED BY THE 1ST RESPONDENT ON THE FILE OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE, THRISSUR` - `Annexure A2 TRUE COPY OF THE ORDER DATED 17/08/2017 IN CRL. M.P NO. 376/2017, 377/2017 AND 378/2017 IN C.C. NO. 507/2013 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR` - `Annexure A3 TRUE COPY OF THE F.I.R ALONG WITH THE F.I STATEMENT IN CRIME NO. 3004/2014 OF THRISSUR EAST POLICE STATION` - `Annexure A4 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 3004/2014 OF THRISSUR EAST POLICE STATION SUBMITTED BEFORE THE LEARNED MAGISTRATE` - `Annexure A5 TRUE COPY OF THE ORDER DATED 15/07/2016 IN R.C NO. 22/2016 DROPPING THE PROCEEDINGS IN CRIME NO. 3004/2014` - `Annexure A6 TRUE COPY OF THE ORDER DATED 28/02/2022 IN C.C NO. 528/2015 OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR` - `Annexure A7 TRUE COPY OF THE COMMON ORDER DATED 07/04/2021 IN CRL.M.C NO. 3127/2020 AND CONNECTED CASES OF THIS HON'BLE COURT` - `Annexure A8 TRUE COPY OF THE SALE DEED NO. 8016/2006 EXECUTED IN FAVOUR OF THE 1ST ACCUSED` ## `RESPONDENT ANNEXURES` - `Annexure R1 True Copy of the order dated 17.12.2021 passed by the Hon'ble Apex Court in SLP (Crl) NoL 9253-9255 of 2021` ``` CRL.MC NO. 2820 OF 2022 ``` ``` 11 ``` |`Annexure`|`True copy of the Report of the Additional Tahsildar`| |---|---| |`R1(a)`|`(Ext P5 in the order dated 28.2.2020 of the Chief`| ||`Judicial Magistrate, Thrissur) dated 13.12.2013`| |`AnnexureR1(`|`True Copy of the order dated 22.12.2016 passed by`| |`c)`|`the Court of the CJM, Thrissur in CMP No:7052 of`| ||`2016 in CC No:528 of 2015`| |`AnnexureR1(`|`True copy of the order dated 7.9.2016 of the Court`| |`d)`|`of the Chief Judicial Magistrate, Thrissur in CMP`| ||`No:3658 of 2016 in CC No:528 of 2015`| |`AnnexureR1(`|`True copy of the English Translations of the`| |`e)`|`Deposition of PW-4 (Village Officer) dated`| ||`13.9.2018`| |`AnnexureR1(`|`True copy of the English Translations of the`| |`f)`|`Deposition of PW-4(Advocate Commissioner) dated`| ||`22.11.2018`| |`Annexure`|`True copy of the English Translations of the`| |`R1(g)`|`Deposition of PW-5(Deputy Collector) dated 3.5.2019`| |`Annexure`|`True of the sketch in Field No.1027/3pt,1028/2pt in`| |`R1(h)`|`Thrissur Village and Taluk`| |`AnnexureR1(`|`True copy of the order dated 21.01.2022, passed by`| |`i)`|`the Hon'ble Apex Court in SLP (Crl) No: 9253-9255`| ||`of 2021`| |`Annexure`|`True copy of the order, 28.03.2022 passed by the`| |`R1(j)`|`Hon'ble Apex Court in SLP (Crl) No: 9253-9255 of`| ||`2021`| |`Annexure`|`True copy of the dated 17.05.2022 passed by the`| |`R1(k)`|`Hon'ble Apex Court in SLP (Crl) No: 9253-9255 of`| ||`2021`| |`AnnexureR1(`|`True copy of the English translation of the Report`| |`b)`|`of the Deputy Collector (English translation of the`| ||`document marked as Ext P-19 in the order dated`| ||`28.2.2020 of the Chief Judicial Magistrate,`| ||`Thrissur) dated 11.03.2016`| ``` 12 ``` ## **`CRL.MC NO. 2820 OF 2022`** |`Annexure-`|`A TRUE COPY OF THE ORDER IN CRL.M.P.NO..891/2019 IN`| |---|---| |`R1(l)`|`V.C.NO.03/16/CRE BEFORE THE COURT OF ENQUIRY`| ||`COMMISSIONER AND SPECIAL JUDGE THRISSUR DATED 20-6-`| ||`2023`| |`Annexure-`|`A TRUE COPY OF THE RELEVANT PORTION OF CURATIVE`| |`R1(m)`|`PETITION CRIMINAL NO.1394/2023 BEFORE THE SUPREME`| ||`COURT OF INDIA DATED 9-1-2023`|