Ashadevi and Retnamma v. Gopalan and State of Kerala

Crl.M.C.No.1179/2019 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA,_ ## _1943_ ## _CRL.MC NO. 1179 OF 2019_ _AGAINST THE ORDER/JUDGMENT IN CC 5535/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHENGANNUR_ ## _PETITIONER/S:_ _1 ASHADEVI, AGED 42 YEARS W/O RAJAN, RESIDING AT KOCUPANACKATTETHU VEEDU, KARAZHMA PADIJATTU MURI, CHENNITHALA VILLAGE, MAVELIKKARA TALUK._ _2 RETNAMMA, AGED 67 YEARS W/O KRISHNANKUTTY, AJITH BHAVANAM, KUTTAMPEROOR, MANNAR._ _BY ADV A.SHAFEEK (KAYAMKULAM)_ ## _RESPONDENT/S:_ _1 GOPALAN, AGED 80 YEARS S/O VELAYUDHAN, KOCHUPANACKATTETHU VEEDU, KARAZHMAPA PADINJATTU MURI,CHENNITHALA VILLAGE, MAVELIKKARA TALUK TALUK 690 105._ Crl.M.C.No.1179/2019 2 - _2 STATE OF KERALA,_ - _REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANNAR THROUGHT THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031._ ## _BY ADV SRI.P.VINODKUMAR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.1179/2019 3 ## **O R D E R** The petitioners are the accused in C.C.No.5535 of 2018 on the file of Judicial First Class Magistrate Court-I, Chengannur. The aforesaid Calendar Case was registered on the basis of a private complaint submitted by the 1[st] respondent herein as C.M.P.No.5041 of 2017 before the said court. The offences alleged against the petitioners are under Sections 379, 406, 463, 465 and 471 read with Section 34 IPC. 2. The facts leading to the aforesaid complaint is as follows: The husband of the 1[st] petitioner is the son of the brother of the 1[st] respondent herein. The 2[nd] petitioner is the mother of the 1[st] petitioner. Case of the 1[st] respondent is that, the Tharavadu property belonging to him and his brother (Father of the husband of the 1[st] petitioner) was jointly possessed by them. The 1[st] respondent and the 1[st] petitioner as well as her husband were residing in the aforesaid property. Out of the entire Tharavadu property, an extent of 10 cents of Crl.M.C.No.1179/2019 4 land was assigned in favour of the petitioner herein by the 1[st] respondent and the mother of the husband of the 1[st] petitioner. Thereafter, a further extent of 8 cents of land was conveyed in favour of the husband of the 1[st] petitioner by way of settlement deed jointly executed by the 1[st] respondent and the mother of the husband of the 1[st] petitioner. In the aforesaid settlement deed, life interest for the 1[st] respondent and the mother of the husband of the 1[st] petitioner were reserved. On account of such life interest, 1[st] respondent was having every right to be in possession of the said property and also to take yield from the same. While so, on 12.09.2017, Mannar police taken the 1[st] respondent herein to the police station on the basis of complaint submitted by the 1[st] petitioner herein and he was kept in the police station from 10 am to 5 pm. When he came back to the house upon release from the police station, documents of the property which were kept by the 1[st] respondent in a box kept in his room, were stolen by the 1[st] petitioner herein. Apart from the above, it was also alleged that 350 numbers of coconuts Crl.M.C.No.1179/2019 5 kept in the room of the 1[st] respondent herein along with two tins of coconut oil were taken by the 2[nd] petitioner herein. Annexure-2 complaint was submitted by the 1[st] respondent before the Judicial First Class Magistrate Court-I, Chengannur with the above allegations. 3. The learned Magistrate conducted inquiry under Section 202 Cr.P.C., as part of which statement of the 1[st] respondent was recorded. Thereafter, Annexure-I order was issued by which cognizance was taken for the offences punishable under Sections 379 , 406, 463, 465 and 471 read with 34 IPC. The petitioner is challenging Annexure-1 order of the learned Magistrate in this Crl.M.P.No.5041 of 2017. 4. Heard Sri.A.Shafeek, learned counsel for the petitioner, Sri.P.Vinodkumar, learned counsel for the 1[st] respondent and Sri.Aravind V. Mathew, learned Public Prosecutor for the State. Case of the learned counsel for the petitioner is that going by the averments contained in Annexure-2 private complaint, it can be seen that no offence as alleged against the petitioners are Crl.M.C.No.1179/2019 6 attracted. The learned counsel contends that the property in which the parties are residing is in the name of Sri.Rajan, husband of the 1[st] petitioner herein. It was pointed out that in the aforesaid property there is a residential building which was constructed by the husband of the 1[st] petitioner and Annexure-4 is the ownership certificate issued to them. It was further contended that the 1[st] respondent and the sisters of the 1[st] petitioner’s husband started harassing the 1[st] petitioner with an intention to compel her to vacate the aforesaid property. In such circumstances, 1[st] petitioner submitted M.C.No.61 of 2017 before the Judicial First Class Magistrate Court-I, Chengannur invoking the provisions of the Protection of Women from Domestic Violence Act, 2005. As per Annexure–6 order passed in C.M.P.No.3890 of 2017 in M.C.No.61 of 2017, the respondents therein including the 1[st] respondent herein, were directed not to cause any obstructions to the peaceful life, possession and enjoyment of the residence of the 1[st] petitioner and her family in the aforesaid property. Apart from the above, Crl.M.C.No.1179/2019 7 the respondents therein were also restrained from entering into the house of the petitioner until further orders. The aforesaid order was passed on 18.09.2017 and the Annexure-2 complaint was submitted on 07.10.2017. The specific case of the petitioners is that Annexure-2 complaint itself was filed as a counter blast to the proceedings initiated by the 1[st] petitioner herein. It is also contended that the averments contained in Annexure-2 complaint would not disclose any of the offences alleged against the petitioners herein. 5. Annexure-1 is the order passed by the learned Magistrate by which cognizance was taken for the offences punishable under Sections 379, 406, 463, 465 and 471 read with Section 34 IPC. As far as the offences punishable under Section 406 IPC is concerned, on going by the averments contained in Annexure-2, there are absolutely no materials to attract said offence. For the purpose of attracting Section 406 IPC, there must be an entrustment of property and dishonest misappropriation by the accused. In this case, even going by Crl.M.C.No.1179/2019 8 the allegations contained in Annexure-2, property which was conveyed to the 1[st] petitioner herein was by way of a sale deed. Even though, it was contended that a portion of the property was conveyed by way of settlement deed in favour of the husband of the 1[st] petitioner herein by reserving life interest for the 1[st] respondent therein, question of dishonest misappropriation of the said property would not arise in the facts and circumstances of this case. Of course, the 1[st] respondent has a case that the conveyance of the aforesaid property in favour of the husband of the 1[st] petitioner was made on the specific condition that he will be looked after by them until his death and there was failure in fulfilling such obligation. However, even going by the allegations contained in Annexure-2, it can be seen that the obligation to look after the 1[st] respondent is upon the husband of the 1[st] petitioner herein and he is not arrayed as an accused in this case. In such circumstances, the offences punishable under Section 406 IPC, would not get attracted as against the petitioners herein. Crl.M.C.No.1179/2019 9 6. The other offences are under Sections 463, 465, 471 of IPC. Going through the allegations contained in Annexure-2, there is absolutely no allegation to the effect that any of the accused persons had made any false documents with the intention to cause damage or injury to the public or to any person. The basic requirement for attracting the aforesaid offence is commission of forgery. As per Section 463 IPC, in order to attract the said offence there must be an allegation that the accused had made false documents with the intention to cause damage or injury to public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud. However, in this case even according to the 1[st] respondent, properties were conveyed through registered documents in favour of the 1[st] petitioner and also to the husband of the 1[st] petitioner. Therefore, the question of creation of false documents does not arise. In the absence of any such allegation the aforesaid offences are not attracted. Crl.M.C.No.1179/2019 10 7. The remaining offence is under Section 379 of IPC. Even though in Annexure-2 complaint it was alleged that the 1[st] petitioner has taken the title deeds of the 1[st] respondent. On going through the statements of CW1, such an allegation is not there. Another allegation for attracting Section 379 IPC is that, 350 numbers of coconut and certain amount of coconut oil were stolen by the 2[nd] petitioner herein. It is a crucial aspect to notice that the aforesaid allegation is only against the 2[nd] petitioner. It is also relevant that, even according to the averments in Annexure-2 complaint, the property was in the ownership of the 1[st] petitioner and her husband. Annexure-4 ownership certificate would indicate that the residence where the parties were residing stands in the name of the husband of the petitioner. It is true as per the allegations contained in Anneuxre-2, the coconuts and the coconut oil belongs to the 1[st] respondent and the same was kept in the house where all the parties were residing. The averments in the complaint and the sworn statement of CW1 would indicate that absolutely nothing Crl.M.C.No.1179/2019 11 is mentioned as from which property the aforesaid coconut were procured. Whether the 1[st] respondent was in possession of any other property for procuring that much quantity of coconut is also not discernible from any of the materials produced before the learned Magistrate. Apparently, the aforesaid articles were kept in the residential building where all the parties were residing. In such circumstances, the question of ownership of the said articles is a crucial matter to be taken into consideration. On going through Annexure-1 order, it is evident that the learned Magistrate had not gone into those aspects before issuing summons to the accused persons and taking cognizance of the aforesaid offence. In paragraph No.16 of the judgment reported in **Gopalan P.K. v. State of Kerala [2019 (2) KHC 538]** , it was observed as follows: “16. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It is not that the Crl.M.C.No.1179/2019 12 Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused” 8. Thus, in the light of the aforesaid principles, it was absolutely necessary to apply the mind by the learned Magistrate before issuing summons to the accused persons. In this case it is seen from Annexure-1 order that even though no supporting averments, cognizance has been taken for almost all the offences mentioned in the complaint including Sections 406, 463, 465, 471 read with Section 34 IPC. In the matter of taking cognizance as against Section 379 IPC also, there are absolutely no materials prima facie satisfying the ownership of the aforesaid articles or even as to the existence of such articles. In such circumstances, I am of the view that, learned Magistrate had not properly applied his mind in respect of the offences Crl.M.C.No.1179/2019 13 alleged against the petitioners and also in the matter of taking cognizance thereof. 9. In such circumstances, I am of the view that Annexure-1 order is liable to be quashed. Accordingly, Crl.M.C is allowed. Annexure-1 order is hereby quashed. The learned Magistrate is directed to re-consider the matter and verify whether there are any materials before the court for any of the offences alleged against them. The aforesaid consideration shall be done by taking note of the observations made in this order. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/17.12.21 Crl.M.C.No.1179/2019 14 ## _APPENDIX OF CRL.MC 1179/2019_ _PETITIONER ANNEXURES_ - _ANNEXURE 1 CERTIFIED COPY OF THE ORDER TAKING COGNIZANCE AND TAKING THE PETITION INTO THE FILES AS CC NO 5535/2018_ - _ANNEXURE 2 CERTIFIED COPY OF THE PRIVATE COMPLAINT FILED BY THE 1ST RESPONDENT AND THE HUSBAND AS CMP NO 5041/2017_ - _ANNEXURE 3 CERTIFIED COPY OF THE SWORN STATEMENT GIVEN BY THE 1ST RESPONDENT BEFORE THE MAGISTRATE COURT ON 24.11.2018_ - _ANNEXURE 4 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 29.11.2019 ISSUED BY THE PACHAYAT_ - _ANNEXURE 5 TRUE COPY OF THE ORDER OF THE FAMILY COURT DATED 27.4.2016 IN OP(JJ) NO 236/2016_ - _ANNEXURE 6 TRUE COPY OF THE ORDER DATED 18.9.2017 IN CMP NO 3890/2017 IN MC NO 61/2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT 1, CHENGANNUR._ - _ANNEXURE 7 TRUE COPY OF THE PLANT IN OS NO 446/2017 FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF COURT, MAVELIKKARA._