Bhaskaran Nair and Kanakkamma v. State of Kerala and Kunju Raman Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 193 Crl.MC.No. 3673 of 2009 ( ) ---------------------------- AGAINST THE ORDER/JUDGMENT IN CC 505/2009 of ADDL.C.J.M.COURT, TRIVANDRUM PETITIONERS/ACCUSED 1 AND 3:: ------------------------------------------------------------ 1. BHASKARAN NAIR, S/O.RAMAN PILLAI, - AGED 78, MUDICHAZHAKATH HOUSE, DECENT JUNCTION P.O MUKHATHALA, KOLLAM-691577. 2. KANAKAMMA, W/O.BHASKARAN NAIR, AGED 72, MUDICHAZHAKATH HOUSE, DECENT JUNCTION P.O MUKHATHALA, KOLLAM-691577. BY ADVS.SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH RESPONDENTS/COMPLAINANT:: -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KUNJU RAMAN NAIR, S/O.RAMAN PILLAI, SREE VIHAR, PACHALLOOR P.O., TRIVANDRUM-695027. R1 BY PUBLIC PROSECUTOR SMT.SHEEBA.M.T R2 BY ADV. SRI.S.RAJEEV THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AV Crl.MC.No. 3673 of 2009 APPENDIX ## PETITIONERS' ANNEXURES : ANNEXURE-A1 : TRUE COPY OF COMMON JUDGMENT IN O.S.No.183/85 AND CONNECTED CASES DATED 29-01-1988 PASSED BY THE SUB COURT, TRIVANDRUM ANNEXURE-A2 : TRUE COPY OF COMMON JUDGMENT IN A.S.NO.56/1989, A.S.NO.144/1990 & A.S.NO.145/1990 DATED 11-06-03 PASSED BY THIS HON'BLE COURT ANNEXURE-A3 : TRUE COPY OF ORDER IN S.L.P(CIVIL)NO.20379 TO 20381 OF 2003 DATED 17-11-2003 PASSED BY THE HON'BLE SUPREME COURT ANNEXURE-A4 : TRUE COPY OF PLAINT AS O.S.NO.279/2006 FILED BY THE 2ND RESPONDENT BEFORE THE SUB COURT, TRIVANDRUM ON 08-06-2006 ANNEXURE-A5 : TRUE COPY OF JUDGMENT IN W.P.(C).NO.31626/07 DATED 29-112007 PASSED BY THIS HON'BLE COURT ANNEXURE-A6 : TRUE COPY OF ORDER IN S.L.P(CIVIL)NO.23306/07 DATED 03.01.2008 PASSED BY THE HON'BLE SUPREME COURT ANNEXURE-A7 : TRUE COPY OF DELIVERY RECEIPT DATED 26-02-2008 ANNEXURE-A8 : TRUE COPY OF COMPLAINT AS C.M.P.NO.5553/05 DATED 12-092005 FILED BY THE 2ND RESPONDENT BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, TVM ANNEXURE-A9 : TRUE COPY CRIME NO.260/05 REGISTERED BY VANCHIYOOR POLICE STATION ANNEXURE-A10 : TRUE COPY OF FINAL REPORT FILED BY POLICE. RESPONDENTS' ANNEXURES : NIL /TRUE COPY/ P.A TO JUDGE ## **B. KEMAL PASHA, J** ## **------------------------------------** Crl.M.C. No. 3673 of 2009 ## **-----------------------------------** Dated this the 24[th] day of July, 2013 ## **O R D E R** The first and third accused in C.C.No.505/2009 of the Additional Chief Judicial Magistrate's Court, Trivandrum, for the offences under Section 120 (b), 192, 193, 196, 463, 464, 468 and 471 of the Indian Penal Code, have come up with a prayer to get the proceedings against them in C.C.No.505/2009, quashed. C.C.No.505/2009 is the result of a private complaint, filed by CW1, as the de facto complainant, against the petitioners and others as accused, alleging the said offences, which was referred to the police under Section 156(3) of the Code of Criminal Procedure. Consequently, the crime was registered and the matter was investigated into. After investigation, Annexure-A10 final report has been filed. The the matter was taken cognizance of by the court below and is presently pending as C.C.No.505/2009. 2. The second petitioner, herein, is the wife of the first petitioner. The first petitioner and CW1 are direct brothers. Late R.Krishnan Nair was their elder brother. According to Crl.M.C. No. 3673 of 2009 2 the first petitioner, the said R.Krishnan Nair had executed an agreement for sale on 25.10.1983, in his favour, in respect of some properties of R.Krishnan Nair, thereby agreeing to sell the same to the first petitioner for a total consideration of `55,500/- through the agreement. The said R.Krishnan Nair obtained an amount of `50,000/- as part of consideration from the first petitioner, and handed over the possession of the said properties to the first petitioner in part performance of the contract. The remaining amount to be paid towards consideration in order to get the sale deed executed was `5,500/- only. During the pendency of the said agreement for sale, it is alleged, that the said R.Krishnan Nair executed a sale deed as well as a deed of anomalous mortgage in respect of the very same property in favour of CW1. As the first petitioner could not get a sale deed executed, he approached the Subordinate Judge's Court, Trivandrum and filed O.S.No.183/1985 for the specific performance of the contract, by arraying the said R.Krishnan Nair and CW1 as the defendants. Prior to that, anticipating actions from the first petitioner, CW1 as plaintiff, filed O.S.No.962/1984 Crl.M.C. No. 3673 of 2009 3 before the Munsiff's Court, Trivandurm against the first petitioner and the said R.Krishnan Nair as defendants, seeking a decree of perpetual injunction in respect of the very same property on basis of the aforesaid sale deed and mortgage deed. The said suit was renumbered as O.S.No.125/1985, when it was transferred to the Subordinate Judge's Court, Trivandrum for joint trial along with O.S.No.183/1985. Further, CW1 filed another suit as 257/1984 also before the Subordinate Judge's Court, Trivandrum for declaration of title on the basis of the aforesaid sale deed. All the suits were jointly tried and through common judgment dated 29.01.1988, O.S.No.183/85 was decreed in favour of the first petitioner herein, and both the other suits filed by CW1 were dismissed. Appeals filed by CW1, before this Court challenging the judgment and decree in all the said suits. The said attempt was also unsuccessful as all the said appeals were dismissed. Matter did not stop there, as the matter was taken up in S.L.P before the Supreme Court and ultimately, the S.L.P was also dismissed. Crl.M.C. No. 3673 of 2009 4 3. The decree in O.S No.183/1985 was put in execution by the first petitioner. Through Annexure A7 delivery kaychit, the possession of the property was delivered to the first petitioner through court in execution of the decree. During the pendency of the execution proceedings, CW1 filed the present private complaint, and consequently Annexure-A10 final report as aforesaid has been filed. All the aforesaid facts are not disputed by the parties. 4. Heard the learned counsel for the petitioners, learned counsel for CW1 and also the learned Public Prosecutor. The learned counsel for the petitioners has invited my attention to the decision in Kishan Singh (D) through L.Rs. v. Gurpal Singh and others [2010 KHC 4569 (SCC)], wherein, it was held that “the issue as to whether the findings recorded by Civil Court are binding in criminal proceedings between the same parties in respect of the same subject matter, is no more res integra.” ## In M/s.Karamchand Ganga Pershad and Another v. Union of India and Others (AIR 1971 SC 1244) , it was held that “it is well established principle of law that the decision of the Civil Courts are binding on the criminal Courts. The converse is Crl.M.C. No. 3673 of 2009 5 not true.” 5. As and when, the S.L.P preferred by CW1 in the very same matter was dismissed by the Supreme Court, the matter has attained finality. There is a clear finding that the agreement executed by R.Krishnan Nair in favour of the first petitioner is valid and enforcible. Ultimately, the possession of the property was also delivered in execution of the decree, which attained finality. Now, at this belated stage, there is no meaning in contending that the said agreement was a forged one. Either the said R.Krishnan Nair or CW1, who claimed title over the property through the sale deed and as well as rights over the property through the deed of anomalous mortgage, could have filed the very same private complaint just after the institution of O.S.No.183/1985. Now, CW1 has chosen to file the private complaint after a lapse of more than twenty years, having failed in his attempts against the first petitioner. It is not possible for the criminal court to take a different view, than what has been consistently taken by the Subordinate Judge's Court, Trivandrum, this Court, as well as the Supreme Court of India. Applying the principle of merger, it seems that CW1 is virtually challenging the Crl.M.C. No. 3673 of 2009 6 findings of this Court as well as Supreme Court of India, at present. Matters being so, there is no merit in the proceedings initiated against these petitioners through Annexure-A10 final report, and therefore, the final report and further proceedings in the matter, as against the petitioners, are liable to be quashed. In the result, this Crl.M.C is allowed and final report and further proceedings in the matter, as against the petitioners, are quashed. Sd/- ## **B. KEMAL PASHA, JUDGE** AV /True Copy/ P.A to Judge