Asharaf S. v. Assistant Commissioner of Police, Ernakulam, and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V.
Judgment Date: 2019-03-12
Court Decision / Holding: Writ petition dismissed as meritless; no costs.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Asharaf S.

Respondents

The Assistant Commissioner of Police, Ernakulam-682011
K.P. Padmini
Prof. (Retd) P.K. Rajappan
Sharada Thirumulpad
K.P Kerala Varma
K.P Padmavarma
K.P Vijayan
K.P Sarojini
Rajendra Varma
K.P Sujatha
K.P Nandan
Subhadra Vijayan
Sudhir Varma
Prasanth Varma
Kerala Varma K.
Bharath Varma
Sushama Varma
Lakshmi Devi Varma
Valsala
Chandrika Varma
Sasi Varma
K.P Saradhakutty
K.P Kishore Varma
Ajitha Varma
K.P Krishna Varma
Lalithambika Varma
V.K Amminikutty
V.K Sukumaran
V.K Valsala
V.K Raghu
V.K Udayan
V.K Ravindran
Kalyan Raman
T.K SeetharamMan
T.K Ramesh
The Commissioner of Police, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Krishna Mani
• Smt. N.V. Sandhya
• Sri. Rahul Venugopal

Counsels for Respondents

• Sri Ajith Murali

Case Synopsis & Summary

The petitioner, Asharaf S., claims to be engaged in real estate business and states that, along with associates, he entered into an agreement for sale of about 71 cents of property with respondents 2 to 32 on 17-01-1994, paying a sum of Rs. 5 lakhs as advance. It was agreed that a sale deed would be executed and registered on or before 28-03-1994, but registration was delayed due to unforeseen circumstances. A subsequent agreement with modified terms was entered in 1996, with substantial further payments. The sale deed, however, never registered. The petitioner later discovered that the property was the subject of a civil suit and that this material fact had been suppressed. He lodged Exhibit-P1 with the 1st respondent on 12-12-2018, alleging that suppression would attract an IPC offence, and sought directions for a speedy investigation and forward action under law. The government pleader informed the court that, after summoning the petitioner, his statement was recorded; the officers concluded the dispute was civil in nature, and that the petitioner should seek relief in civil court. The court noted the delay of over two decades, the absence of prior civil proceedings, and concluded that the writ petition is an abuse of process. It declined to grant a criminal remedy, citing established precedents. The writ petition was meritless and dismissed, with no costs.

Provisions of Law Cited

Article 226 of the Constitution of IndiaSection 482 of the Cr.P.C.

Legal Doctrines & Maxims

Abuse of process
Exhaustion of remedies under Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that suppression of a material fact in a sale transaction, executed in 1994 with respondents 2–32, amounted to a criminal offence, warranting registration of an FIR. He sought the Court’s intervention under Article 226 to direct speedy investigation and onward action under law, contending that the civil remedies were ineffective and that the delay in registration justified extraordinary relief.

Contentions of Respondents

The respondents’ counsel deferred to the civil nature of the dispute, noting that the alleged civil transaction occurred long ago and that the petition for criminal relief was an attempt to bypass Cr.P.C. remedies. The Government Pleader advised the petitioner to pursue civil remedies and highlighted the absence of timely complaints or civil actions over decades.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Alique Padamsee and others v. Union of India and others	(2007) 6 SCC 171	Positive	Cited to support the proposition that if a party contends that FIR has not been registered, the remedy is to exhaust Cr.P.C. remedies, not file a writ petition under Article 226.
Sakiri Vasu v. State of U.P.	2008 (1) KLT 724	Positive	Cited for the same proposition regarding Cr.P.C. remedies over writ petitions for registration of FIR.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** ## **WP(C).No. 6334 of 2019** ## **PETITIONER/S:** **ASHARAF.S., AGED 65 YEARS,** **S/O. SAINALUBDEEN, RESIDING AT HOUSE NO. XI/291(1) CRASH ROAD, VAZHAKKALA, KAKKANADU, THRIKKAKARA MUNICIPALITY FROM C.C 23/2313, CHEMBAKKARA DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.B.KRISHNA MANI SMT.N.V.SANDHYA SRI.RAHUL VENUGOPAL** ## **RESPONDENT/S:** - **1 THE ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM-682 011.** - **2 K.P.PADMINI, D/O. LATE LAKSHMIKUTTY NAMBISTATHIRI, W/O. K.K VARMA, NOW RESIDING AT 31, IIND MAIN ROAD, RAJA ANNAMALIPURAM, CHENNAI 600 028.** - **3 PROF.(RTD) P.K.RAJAPPAN, S/O. LATE LAKSHMIKUTTY NAMBISTATHIRI, NOW RESIDING AT ROHINI, CHAKKALAMUTHU, NORTH FORT GATE. THRIPUNITHURA 682 301.** - **4 SHARADA THIRUMULPAD, D/O. LATE KAVU NAMBISTATHIRI, SANGEETHA, NORTH FORT GATE, THRIPUNITHURA 682 301.** - **5 K.P KERALA VARMA, S/O. LATE LAKSHMIKUTTY NAMBISTATHIRI, 18/362, MIRE SOCIETY, SHANTERAETH ROAD, PIN 411 037.** W.P(C) 6334/2019 2 - **6 K.P PADMAVARMA, AGED 68 YEARS, S/O. LATE LAKSHMIKUTTY NAMBISTATHIRI, RESIDING AT SADANAM ROAD, COCHIN 16** - **7 K.P VIJAYAN, AGED 64 YEARS S/O. LATE LAKSHMIKUTTY NAMBISTATHIRI, RESIDING AT SADANAM ROAD, COCHIN 16.** - **8 K.P SAROJINI, AGED 59 YEARS, D/O. LATE KUNJIKAVATHY NAMBISTATHIRI, RESIDING AT KANNAZHUTHU PUTHEN MADOM, NADAMA, THRIPUNITHURA 682 301.** - **9 RAJENDRA VARMA, AGED 34 YEARS S/O. K.P SAROJINI, KANNAZHUTHU PUTHEN MADOM, NADAMA, THRIPUNITHURA 682 301.** - **10 K.P SUJATHA, AGED 29 YEARS, D/O. K.P SAROJINI, KANNAZHATHU PUTHEN MADOM, NADAMA, THRIPUNITHURA 682 301.** - **11 K.P NANDANAN, AGED 59 YEARS, S/O. LATE KOCHUMMINI NAMBISTATHIRI, SWARGASUDHA, THAMARKULANGARA, THRIPUNITHURA 682 301.** - **12 SUBHADRA VIJAYAN, AGED 54 YEARS, W/O. K. VIJAYAN, KANNAZHUTHU PUTHEN MADOM, NORTH FORT GATE, THRIPUNITHURA 682 301.** - **13 SUDHIR VARMA, AGED 31 YEARS, S/O. SUDBHADRA, KANNAZHUTHU PUTHEN MADOM, NORTH FORT GATE, THRIPUNITHURA 682 301.** - **14 PRASANTH VARMA, AGED 29 YEARS, S/O. SUBHADRA VIJAYAN, KANNAZHUTHU PUTHEN MADOM, NORTH FORT GATE, THRIPUNITHURA 682 301.** - **15 KERALA VARMA K., AGED 45 YEARS, S/O. LATE KOCHAMMINI, KANNAZHUTHU PUTHEN MADOM, THRIPUNITHURA 682 301.** - **16 BHARATH VARMA, AGED 49 YEARS S/O. SARADA THIRUMULPAD, SANGEETHA NORTH FORT GATE, THRIPUNITHURA 682 301.** W.P(C) 6334/2019 3 - **17 SUSHAMA VARMA, AGED 49 YEARS D/O. K.P PADMINI, C/O. BHARATH VARMA, SANGEETHA NORTH FORT GATE, THRIPUNITHURA 682 301.** - **18 LAKSHMI DEVI VARMA,AGED 44 YEARS, W/O. K. NARAYANAN, RESIDING AT 31, IIND MAIN ROAD, RAJA ANNAMALIPURAM, MADRAS 600 028.** - **19 VALSALA, AGED 49 YEARS, D/O. LATE KUNIAKAVATHY NAMBASTATHIRI, ASTAMI, EAST NADA, VAIKOM.** - **20 CHANDRIKA VARMA, AGED 50 YEARS, D/O. SARADA, THIRUMULPAD, TACHER, SANGEETHA, NORTH FORT GATE, THRIPUNITHURA 682 301.** - **21 SASI VARMA, AGED 49 YEARS, S/O.S ARADA THIRUMULPAD, AMBILI, NORTH FORT GATE, THRIPUNITHURA 682 301.** - **22 K.P SARADHAKUTTY, AGED 74 YEARS, W/O. LATE K.P KUNJUNNY, THIRUPAD, RESIDING AT KANNEZHUTHU MADOM, KIZHAKKE NADA, ELAMKUNNAPUZHA 682 503.** - **23 K.P KISHORE VARMA, AGED 39 YEARS, S/O. KUNJUNNY THIRUPAD, CLERK, RESIDING AT KANNAZHUTHU MADOM, KIZHAKKE NADA, ELAMKUNNAPUZHA P.O 682503.** - **24 AJITHA VARMA, AGED 37 YEARS, D/O. LATE K.P KUNJUNNY THIRUPAD, CLERK, RESIDING AT KANNAZHUTHU MADOM, KIZHAKKE NADA, ELAMKUNNAPUZHA P.O, 682 503.** - **25 K.P KRISHNA VARMA, AGED 42 YEARS, S/O. LATE K.P KUNJUNNY THIRUPAD, RESIDING AT KANNAZHUTHU MADOM, KIZHAKKE NADA, ELAMKUNNAPUZHA 682 503.** - **26 LALITHAMBIKA VARMA, AGED 33 YEARS, D/O. LATE K.P KUNJUNNY THIRUPAD, NOW RESIDING AT C/O. ANANDA VARMA, M/S. SUJAL ENGINEERING PVT LTD, SIDCO, INDUSTRIAL ESTATE, TAMIL NADU, 635126.** W.P(C) 6334/2019 4 - **27 V.K AMMINIKUTTY, AGED 79 YEARS, D/O. KUNIPILLAI NAMBISTATHIRI, NOW RESIDING AT KRISHNA KRIPA, INDIRA ROAD, EDAPPALLY, ERNAKULAM 682 024.** - **28 V.K SUKUMARAN, AGED 51 YEARS, S/O. V.N AMMINIKUTTY, KRISHNA KRIP, INDIRA ROAD, EDAPPALLY, ERNAKULAM-682 024.** - **29 V.K VALSALA, AGED 54 YEARS, D/O. V.N AMMINIKUTTY, ANUPAMA, SADANAM ROAD, KOCHI-682 016.** - **30 V.K RAGHU, AGED 38 YEARS, S/O. V.N AMMINIKUTTY, KRISHNA KRIPA, INDIRA ROAD, EDAPPALLY, ERNAKULAM-682 024.** - **31 V.K UDAYAN, AGED 49 YEARS, S/O. V.N AMMINIKUTTY, ANJALI, KEERTHI NAGAR, ELAMAKARA, KOCHI-682 026.** - **32 V.K RAVINDRAN, AGED 52 YEARS, S/O. V.N AMMINIKUTTY, NEO SHASTHRI NAGAR, CO-OPERATIVE HOUSING SOCIETY, MULAND COLONY, MULAN WEST, BOMBAY-400 082.** - **33 KALYAN RAMAN, KALYAN DEVELOPERS, 62/925, 926, JOSE JUNCTION, M.G ROAD, ERNAKULAM-682 016.** - **34 T.K SEETHARAMAN, KALAYAN DEVELOPERS, 62/925, 926, JOSE JUNCTION, M.G ROAD, ERNAKULAM-682 016.** - **35 T.K RAMESH, KALYAN DEVELOPERS, 62/925, 926, JOSE JUNCTION, M.G ROAD, ERNAKULAM-682 016.** - **36 THE COMMISSIONER OF POLICE, ERNAKULAM-682 011.** ## **OTHER PRESENT:** ## **BY GOVERNMENT PLEADER SRI. AJITH MURALI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) 6334/2019 5 ## **JUDGMENT** The petitioner herein claims to be a real estate business man. According to him, he along with his associates entered into an agreement for sale in respect of an item of property having an extent of about 71 cents with the respondents 2 to 32 on 17.1.1994 and paid a sum of Rs.5 lakhs by way of advance. It was agreed between the parties that the sale deed would be executed and registered on or before 28.3.1994. The registration of the deed got delayed due to unforeseen circumstances. Later, another agreement with modified terms was entered into and substantial amounts of money changed hands. However, the sale deed was not registered. Later, the petitioner realized that the property agreed to be sold was the subject matter of a civil suit and the said fact was suppressed. Alleging that the suppression of this material fact would make out an offence under the provisions of the IPC, the petitioner lodged Exhibit-P1 representation before the 1[st] respondent on 12.12.2018. 2. The prayer in this writ petition filed under Article 226 of the Constitution of India is to issue necessary directions to the 1[st] respondent to conduct a speedy investigation on Exhibit-P1 W.P(C) 6334/2019 6 representation and proceed in accordance with law. Alternatively, the petitioner seeks expeditious disposal of Exhibit-P1. 3. The learned Government Pleader, on instructions, submitted that on receipt of Exhibit-P1, the petitioner was summoned by the 1[st] respondent and his statement was recorded. It was noticed that the dispute was purely civil in nature and the claim for refund of money and damages has been raised after several decades. The petitioner was advised to ventilate his grievance by approaching the civil court. 4. I have considered the submissions advanced and have perused the materials on record. 5. Admittedly, the transaction was in the year 1994. The subsequent agreement was allegedly executed in the year 1996. Exhibit-P1 has been submitted after more than 24 years. The petitioner has no case that he had approached the civil court seeking any relief. Clearly, the institution of this writ petition is an abuse of process. However, in view of the fervent submission of the learned counsel, I refrain from imposing costs. 6. Even otherwise, I am unable to accept the contention of the learned counsel that this Court should exercise its powers and W.P(C) 6334/2019 7 order registration of a crime. The Apex Court in **Alique Padamsee and others v. Union of India and others** [(2007) 6 SCC 171] and in **Sakiri Vasu v. State of U.P.** [2008 (1) KLT 724], have conclusively held that the remedy of a person, who has a grievance that a FIR has not been registered by the police, is to exhaust his remedies under the relevant provisions of the Cr.P.C. and not rush to this Court with a writ petition under Article 226 of the Constitution of India or a petition under Section 482 of the Cr.P.C. 7. This writ petition is merit-less and the same will stand dismissed. However, there shall be no order as to costs. **SD/-** ## **RAJA VIJAYARAGHAVAN V.,** ## **JUDGE** KRJ //TRUE COPY// P.A. TO JUDGE W.P(C) 6334/2019 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 12/12/2018 FILED BEFORE THE ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM. EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 13/12/2018.** **RESPONDENTS’ EXHIBITS:-NIL**