Arakkal Ahammed Koya and others v. Malu and State, Crl.M.C. No. 6289 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** **Crl.MC.No.6289 OF 2014** **CC 1446/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KUNNAMANGALAM** ## **PETITIONERS/ACCUSED:** **1 ARAKKAL AHAMMED KOYA AGED 61 YEARS S/O.ABDULLAKOYA, THENDATTU PARAMBIL,4/335 A, KACHERY AMSOM DESOM, KOZHIKODETALUK - 673 001.** **2 AJITHKUMAR AGED 38 YEARS S/O.SUGUNAN, PADANNAPPURATH, THIRUTHIYAD, KACHERI AMSOM DESOM, KOZHIKODE DISTRICT -673 001. 3 K.V.JANARDHANAN AGED 63 YEARS S/O.AUNDY, ROHINI, VATTAKKANDI PARAMBU, KIZHAKKE PURATH, POONGAVANAM ROAD, NELLIKODE AMSOM DESOM, KOZHIKODE DISTRICT - 673 014.** **4 SUGUNAN AGED 63 YEARS S/O.NAYADIKANDAN, PADANNAPPURATH, THIRUTHIYAD,KACHERI AMSOM DESOM, KOZHIKODE DISTRICT -673 001.** **BY ADV. SRI.P.V.ANOOP** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 MALU, AGED 75 YEARS W/O.RAMUTTY, KUNNATH THAZHATH HOUSE, NELLIKKODE AMSOM DESOM, KOZHIKODE DISTRICT - 673 016.** Crl.M.C No. 6289 of 2014 2 **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,KOCHI - 682 031.** **R1 BY ADV. SRI.M.PROMODH KUMAR R1 BY ADV. SRI.P.R.SREEJITH** **BY ADVS.** **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR SRI.M.PRAMODH KUMAR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 6289 of 2014 3 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 6289 of 2014 -----------------------------------Dated this the 22[nd] day of December, 2020 ## **O R D E R** The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.PC is as follows: _“…….may kindly quash the entire proceedings in C.C No.1446/2013 on the file of the Judicial First Class Magistrate Court, Kunnamangalam.”_ 2. The petitioners have now been arrayed as accused Nos.1 to 4 among the four accused in the impugned Anx.A protest complaint filed before the Judicial First Class Magistrate Court, Kunnamangalam, which has now led to the pendency of Calendar Case, C.C No.1446/2013 on the file of the learned Magistrate, for offences punishable under Secs.406 & 420 of the IPC. 3. The brief of the allegations in Anx.A protest complaint dated 15-11-2011 is as follows: _“Third accused is a money lender and the other accused are closely connected to the third accused. After the death of complainant's husband, 10 and 1/8 cents of land situated in re-survey No.14/1 of Palazhi Desom, Pantheerankavu Amsom, Kozhikode Taluk, was set apart to the share of_ Crl.M.C No. 6289 of 2014 4 _the 1[st] respondent, as per the partition Deed No.2630/1995 of Chevayur Sub Registrar Office. The above property is in the absolute possession and ownership of the 1[st] respondent and her children. In March, 2000, the 1[st] respondent availed a loan from Calicut Co-operate Urban Bank by mortgaging the property. Meanwhile, the marriage of 1[st] respondent's daughter was fixed and since there was no other source to meet the expenses, she met the 3[rd] accused through the 4[th] accused who is the father of the 2[nd] accused and availed an amount of Rs.65,000/- on interest. Third accused insisted to register her property to him for giving the amount and also assured that if the amount and interest is returned, the property will be re-conveyed to the 1[st] respondent. Since it was an immediate necessity, the 1[st] respondent and her children register the document on the belief that the registration is only as a security. Subsequently in 2006, the amount due to the bank was repaid when recovery steps were taken by them. Subsequently it was requested to reconvey the property and then it is understood that it was an assignment deed which was signed by the first respondent and her children. First respondent never intended to assign the property. There was no delivery of the property. Subsequently, the property is assigned in the name of the 2[nd] accused as per registered document No.3030/2006. Action of the accused is deliberate and without any authority in the property. The_ Crl.M.C No. 6289 of 2014 5 _assignment deeds were never acted upon. In such circumstances, the 1[st] respondent filed a complaint before the police, but the police referred the matter.”_ 4. It appears that before the initiation of Anx.A complaint, 1[st] respondent had filed a private criminal complaint before the Jurisdictional Magistrate Court concerned as Crl.M.P No.1054/2010, and the learned Magistrate forwarded the complaint to the police for registration of crime and conduct of investigation in the allegations thereon and it resulted in the registration of crime No.119/2010 of Kozhikode Medical College police station. The investigation was then conducted by the Assistant Police Commissioner (North), Kozhikode, who after a detailed and exhaustive investigation has filed Anx.C refer report dated 07-10-2010, before the Jurisdictional Magistrate court concerned, stating that the case has to be closed as ‘mistake of fact’. In the said investigation, in Anx.C, the investigation agency has found that the property in question was purchased by 1[st] petitioner herein (A1) as per a sale agreement for an amount of Rs.1,30,000/- and that A1 had assigned the property to A2 for an amount of Rs.2 lakhs and A2 in turn assigned the property to A4 for an amount of Rs.4 Lakhs. The Investigating Officer has thus found that there is increase in land Crl.M.C No. 6289 of 2014 6 value after the disposal of the property by the 1[st] respondent in 2002, because of the formation of Thondayad Bye-pass Road. The first private criminal complaint and the FIR was got lodged, only to get more amount from the accused persons concerned. Hence the Investigating officer has urged the learned Magistrate to accept Anx.C refer report. 5. The case has taken yet another interesting turn thereafter without challenging Anx.C refer report or taking care to file a protest complaint thereto, the 1[st] respondent has filed yet another private criminal complaint before the learned Magistrate. Very curiously, the same was again forwarded by the learned Magistrate to the police for registration of crime and conduct investigation, which led to the registration of yet another crime viz, crime No.665/2011 of Kozhikode Medical College police station on the same subject of allegations . The Police after detailed investigation had again referred the matter with the observation and finding in Anx.C as can be seen from Anx.D refer report dated 15-10-2011 filed by the investigating agency before the learned Magistrate. It is thereafter that the 1[st] respondent has filed the impugned Anx.A protest complaint raising the same allegations, in which the learned Magistrate has taken Crl.M.C No. 6289 of 2014 7 cognizance and has recorded the statements of the 1[st] respondent and her witnesses. The sole statement of such witnesses so recorded by the learned Magistrate in Anx.A protest complaint are those in Anxs.E to J. 6. The petitioners would point out that even if the entire allegations in Anx.A and Anx.E to J are taken as whole, no offence under Sec.406 & 420 of the IPC are made out. To attract an offence under Sec.420 of IPC, there must be ingredients of cheating as defined in Sec.415 of the IPC and the prosecution should have a definite case that the accused dishonestly induced the victim so deceived to deliver any property to any person. For that, to fulfil the definition of cheating, fraudulent and dishonest inducement of the person by deceiving him to deliver any property to any person so as to cause unlawful loss to the victim or unlawful gain to the accused, etc is necessary. Hence the petitioner would point out that the abovesaid allegations are untenable, etc. 7. Further that the petitioners would point out that there are registered documents executed by the 1[st] respondent and children, who are the executants in the said document. That one of the executants in the document is one Pushpa, who is a peon at Central Crl.M.C No. 6289 of 2014 8 School and other is the daughter of the 1[st] respondent, who studied up to degree and completed teachers training course and she is working in Food Corporation of India (FCI). That the property was assigned in favour of A1 as per registered assignment deed No.1194/2002 of the SRO concerned. Based on that A1 came to absolute possession and ownership of the property and had taken usufructs from the said property after paying the land tax. It is thereafter that A2 (2[nd] petitioner) had purchased the subject property as per registered assignment document No.3330/2006, from the 1[st] petitioner (A1). The 2[nd] petitioner (A2) was in absolute possession of property. Meanwhile, the 1[st] respondent and others had filed original Suit O.S No.350/2010 before the Munsiff Court-II, Kozhikode, as can be seen from Anx.K plaint in the said suit. The petitioners have filed Anx.L written statement thereto on 15-09-2010. Hence it is urged that, it can be seen that the disputes between the parties are essentially in the realm of civil disputes and that no criminal culpability can be made out in this case. 8. After hearing both sides, this Court is of the considered view that the impugned criminal proceedings now set in motion pursuant to Anx.A protest complaint is an abuse of the process of court. Crl.M.C No. 6289 of 2014 9 Initially based on a private criminal complaint filed by the 1[st] respondent, a crime was registered, which led to the submission of Anx.C refer report dated 07-10-2010. The 1[st] respondent has not challenged the proceedings at Anx.C refer report in the manner known to law either by objecting to Anx.C refer report and to urge before the learned Magistrate that the findings thereon regarding the refer report should be rejected and either that the learned Magistrate should take cognizance for grounds made out or should on account of further investigation. The 1[st] respondent has not even cared to file protest complaint at the stage of submission of Anx.C refer report. On the other hand, the 2[nd] respondent has filed yet another private criminal complaint before the same learned Magistrate. Even if it is assumed that the second private criminal complaint is meticulously a protest complaint, the learned Magistrate has not understood if so, and on the other hand, had again directed under Sec.156(3) of the Cr.PC that the police should again register a crime and conduct investigation thereof. It is thereafter that the police has again conducted exhaustive investigation and submitted in Anx.D refer report. 9. Hence it can be seen that the impugned criminal Crl.M.C No. 6289 of 2014 10 proceedings is an abuse of process of court after the submission of Anx.C refer report. Further it can be seen that the subject property has been conveyed by the 1[st] respondent to the 1[st] petitioner (A1) as per registered assignment deed in the year 2002, which in turn was assigned by the 1[st] petitioner to the 2[nd] petitioner (A2) by yet another assignment deed in the year 2006. The 1[st] respondent and others have filed Anx.K civil suit, in which the petitioners have filed Anx.L written statement, etc. In the light of the abovesaid registered documents it cannot be said that the petitioners should be attributed with the criminal mens rea of dishonest intention to cause unlawful loss to the 1[st] respondent or unlawful gain to the petitioners etc, right from the commencement of the transaction whereby, the property was assigned in favour of the 1[st] petitioner in the year 2002 by the execution and registration of registered assignment deed No.1194/2002. Hence the disputes essentially in the realm of civil disputes. Further the learned Magistrate has illegally taken cognizance of offences in Anx.A protest complaint. The learned Magistrate has not cared to take into account the legal position well settled by a series of judicial decisions as in _**Parameswaran Nair v. Surendran [2009 (1) KLT 794].**_ In para No.16 of _**Parameswaran Nair’s**_ Crl.M.C No. 6289 of 2014 11 _**case**_ (supra) _**[2009 (1) KLT 794],**_ this court has categorically held that a protest complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings and that the Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses recorded in that enquiry. It will be profitable to refer to para No.16 & 17 of the decision of this Court in _**Parameswaran Nair’s case**_ (supra) _**[2009 (1) KLT 794]**_ which read as follows: _“16. If Magistrate finds that in spite of all the objections raised, the final report is to be accepted he can accept it and drop the proceeding. At that stage Magistrate can entertain a second complaint. But such a complaint will lie only if there was manifest error or manifest miscarriage of justice or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings. The Magistrate cannot therefore ignore the final report altogether and consider only the protest complaint and the sworn statement of the witnesses recorded in that enquiry._ _17. The well settled legal propositions can be summed up as follows:_ _(1) When a final report is made by an officer of the Police Station under sub-s.(2) of S.173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process._ Crl.M.C No. 6289 of 2014 12 _(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report._ _(3) Magistrate can direct further investigation under sub-s. (3) of S.156._ _(4) Magistrate can take cognizance on the final report itself under S.190(1)(b) disregarding the opinion of the police and issue summons._ _(5) Magistrate can take cognizance on the original complaint, where investigation under sub-s.(3) of S.156 was earlier ordered and record the statement of the complainant and the witnesses as provided under S.200 and can conduct an inquiry, In that inquiry Magistrate can direct investigation by a police officer or such other officer as provided under S.202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued._ _(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence could not have brought forward in the previous proceedings.”_ 10. A reading of the impugned materials in this case would lead to the irresistible conclusion that the crucial decision taken by the learned Magistrate in having taken cognizance of the offence alleged in Anx.A protest complaint and having issued summons to the Crl.M.C No. 6289 of 2014 13 accused persons therein are in flagrant violation of the abovesaid dictum laid down by this court in a series of decisions as in _**Parameswaran Nair’s case**_ (supra) _**[2009 (1) KLT 794].**_ In the light of the abovesaid indisputable aspects, it is only to be held that Anx.A protest complaint does not disclose any serious and grave miscarriage of justice or that the complainant had brought out new facts or materials which he/she had no knowledge of or with due diligence could not have brought forward in the previous proceedings. Already two rounds of private criminal complaints and two registration of crime and submissions of two refer reports by the police are already over. After the submission of Anx.C proceedings initiated by the 2[nd] respondent after the submission of Anx.C refer report dated 07-10-2010 itself is illegal and ultra vires, due to the aforementioned reasons. Further the leaned Magistrate has committed a egregious error in having taken cognizance of the offence alleged as per Anx.A protest complaint in view of the aforementioned aspects borne out from the dictum laid down by this Court in decisions as in _**Parameswaran Nair’s case**_ (supra) _**[2009 (1) KLT 794].**_ 11. The upshot of the above discussion is that the very initiation Crl.M.C No. 6289 of 2014 14 continuance of the impugned criminal proceedings in Anx.A is an abuse of the process of the court, which will warrant interdiction at the hand of the court in exercise of the inherent extraordinary powers of this court saved and preserved in terms of Sec.482 of Cr.PC. In that view of the matter, it is ordered that the impugned Anx.A protest complaint, which has now led to the pendency of Calendar Case, C.C No.1446/2013 and all further proceedings taken in pursuance thereof as against the petitioners/accused persons will stand quashed and set aside. 12. The petitioners will produce certified copies of this order before the Investigating Officer concerned as well as before the JFCM, Kunnamangalam, who is now dealing with C.C. No.1446/2013 for necessary information. With these observations and directions the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 6289 of 2014 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A**|**ANNEXURE-A: TRUE COPY OF THE COMPLAINT**| |---|---| ||**DATED 15.11.2011 FILED BY THE IST**| ||**RESPONDENT WHICH IS NOW PENDING AS**| ||**C.C.NO.1446/2013 ON THE FILE OF THE**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT,**| ||**KUNNAMANGALAM.**| |**ANNEXURE B**|**ANNEXURE-B: TRUE COPY OF THE ORDER**| ||**SHEET IN C.M.P NO.5755/2011 IN C.C.**| ||**NO.1446/2013 ON THE FILE OF THE**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT,**| ||**KUNNAMANGALAM.**| |**ANNEXURE C**|**ANNEXURE-C: TRUE COPY OF THE REFER**| ||**REPORT DATED 7.10.2010 SUBMITTED BY THE**| ||**ASSISTANT COMMISSIONER OF POLICE**| ||**(NORTH), KOZHIKODE CITY IN CRIME**| ||**NO.119/2010 OF MEDICAL COLLEGE POLICE**| ||**STATION.**| |**ANNEXURE D**|**ANNEXURE-D: TRUE COPY OF THE REFER IN**| ||**CRIME NO.665/2011 OF MEDICAL COLLEGE**| ||**POLICE STATION DATED 15.10.11**| |**ANNEXURE E**|**ANNEXURE-E: TRUE COPY OF THE STATEMENT**| ||**OF THE IST RESPONDENT DATED 25.2.2013**| ||**IN C.M.P NO.5755/2011 RECORDED BY THE**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT,**| ||**KUNNAMANGALAM.**| |**ANNEXURE F**|**ANNEXURE-F: TRUE COPY OF THE STATEMENT**| ||**OF VINOD KUMAR DATED 25.2.2013 RECORDED**| ||**IN C.M.P NO.5755/2011 BY THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT,**| ||**KUNNAMANGALAM.**| |**ANNEXURE G**|**ANNEXURE-G: TRUE COPY OF THE STATEMENT**| ||**IN USHA DATED 25.2.2013 RECORDED IN**| ||**C.M.P NO.5755/2011 BY THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT,**| ||**KUNNAMANGALAM.**| Crl.M.C No. 6289 of 2014 16 **ANNEXURE H ANNEXURE-H: TRUE COPY OF THE STATEMENT OF JAYAN DATED 13.5.2013 RECORDED IN C.M.P NO.5755/2011 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMANGALAM.** |**ANNEXURE I**|**ANNEXURE-I: TRUE COPY OF THE STATEMENT**| |---|---| ||**OF SUMATHI DATED 25.3.2013 RECORDED IN**| ||**C.M.P NO.5755/2011 BY THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT,**| ||**KUNNAMANGALAM.**| |**ANNEXURE J**|**ANNEXURE-J: TRUE COPY OF THE STATEMENT**| ||**OF PUSHPA DATED 25.3.2013 RECORDED IN**| ||**C.M.P NO.5755/2011 BY THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT,**| ||**KUNNAMANGALAM.**| |**ANNEXURE K**|**ANNEXURE-K: TRUE COPY OF THE PLAINT**| ||**DATED 17.4.2010 IN O.S.NO.350/2010 ON**| ||**THE FILE OF THE MUNSIFF COURT-II P,**| ||**KOZHIKODE.**| |**ANNEXURE L**|**ANNEXURE-L: TRUE COPY OF THE WRITTEN**| ||**STATEMENT DATED 15.9.2010 IN**| ||**O.S.NO.350/2010 FILED BY THE**| ||**PETITIONERS.**| ## **RESPONDENT'S/S EXHIBITS: NIL**