Criminal Misc. Case No.1690 of 2018

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` TUESDAY,THE6[TH]DAYOFJUNE2023/16THJYAISHTA,1945 ``` ## **`CRL.MC NO. 1690 OF 2018`** ``` CRIMENO.593/2017OFTHEMANJERIPOLICESTATION PETITIONERS/ACCUSED: ``` ``` 1ABDULRASHEEDPARAMBAN S/O.MUHAMMED,PARAMBANHOUSE, MULLAMPARA,MANJERI.P.O, MALAPPURAMDISTRICT. 2YOUJINTHOMAS S/O.THOMAS,MUNDAKKALHOUSE, DEVALOKAM.P.O,KOTTAYAMDISTRICT. 3GEETHA W/O.KRISHNAKUMAR,KALATHIKAROTTHOUSE, COLLECTORATE.P.O,KOTTAYAM,KOTTAYAMDISTRICT. ``` ## `BY ADV SRI.BABU S. NAIR` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT :`** ``` 1THESTATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM,KOCHI, PIN-682031-FORTHESUBINSPECTOROFPOLICE, MANJERIPOLICESTATION,MALAPPURAMDISTRICT. ``` ``` 2SURESHKUMAR.T S/O.S/O.CHINNANNAIR,THALAYATHODIHOUSE, VAYAPARAPADI,MANJERI, MALAPPURAMDISTRICT,PIN-676121. ``` ``` BYADVS. SRI.V.HARIKRISHNAN SRI.V.HARIKRISHNAN SRI.SOJANMICHEAL ``` ``` SRIVIPINNARAYANSRPP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 06.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.1690 of 2018 2 ## **ORDER** The petitioners herein are the accused Nos.1 to 3 in Crime No.593/2017 of the Manjeri police station. In the aforesaid case, they are accused of having committed offenses punishable under Sections 420 and 506, read with Section 34 of the IPC. The above crime was registered based on Annexure A complaint lodged by the 2nd respondent before the District Police Chief. 2. Short facts of the case are as under a) The complainant in this case is a businessman who had his daughter's wedding scheduled for August 2016. Desperately in need of funds to finance the wedding, he decided to mortgage his 5-acre property. Through a friend, he approached the first accused, a well-known politician, who allegedly promised to assist in arranging the required amount. The complainant then went to Kottayam, as directed by the 1st accused, to meet someone named Yugin for further assistance, but Yugin also refused to provide a loan. Crl.M.C No.1690 of 2018 3 - b) As the complainant grew more desperate, the first accused assured him that he would arrange Rs 7 lakhs in cash and gold ornaments worth Rs 7.53 lakhs. Two days before his daughter's marriage, the complainant was asked to enter into an agreement with the first accused. Without thoroughly reading or understanding the contents of the agreement, he was persuaded to sign it. Immediately after signing, the cash and gold were provided to him. - c) On September 5, 2016, the complainant was asked to go to Kottayam again. Upon arrival, he was instructed to transfer his 5-acre property to the first accused in exchange for a total sum of Rs 16 lakhs. According to the complainant, he had purchased the same property for over Rs 1.5 crores. He was threatened and intimidated that unless he signed the deed prepared by the third accused, the gold worn by his daughter would be taken back. Fearing the consequences and concerned for his daughter's future, the complainant allegedly signed the deed, which later turned out to be a sale deed. It is alleged that the accused had acted in Crl.M.C No.1690 of 2018 4 concert with intent to cause wrongful loss to the de facto complainant and gain wrongfully. d) Based on these allegations, a complaint was filed, leading to the registration of a crime. 3. The learned counsel appearing for the petitioners argues that the allegations in the complaint will not constitute any offense and hence the registration of the same is a clear abuse of process. Exhibit B to F documents are relied upon, and it is contended that the version of the de facto complainant that he was threatened and deceived to execute the sale deed cannot be believed. It is further urged that insofar as accused 2 and 3 are concerned, there is no semblance of allegations in the complaint to get them implicated as the accused. The remedy, if any, available to the defacto complainant is to approach the Civil Court with his grievance and not to get a crime registered with a view to harass the petitioners. The 3rd petitioner, who is a scribe, has been arrayed as the accused on the sole allegation that she had prepared the sale deed and nothing more. It is further submitted that though the extent of the property is 5 acres, as a matter of fact, the property is wetland. In the said circumstances, the 1st accused has also lodged a complaint alleging that he has been induced to part with money on Crl.M.C No.1690 of 2018 5 the basis of false, fabricated, and concocted documents. 4. The learned counsel appearing for the party respondent has opposed the submissions. It is submitted that specific allegations have been raised against each of the petitioners, and the matter being at the crime stage, this court will not be justified in quashing the proceedings. According to the learned counsel, the property which the de facto complainant was fraudulently made to part with was purchased by him for a consideration in excess of 1 Crore. It cannot be believed that the de facto complainant would assign the property for a paltry sum of Rs 16 lakhs if it were not for intimidation and threat. The learned counsel submits that close reading of the complaint, as well as the FIR, would disclose the ingredients of the offense. 5. The learned Public Prosecutor has also opposed the submissions. Relying on the principles laid down by a Three Judge Bench of the Apex Court in **Neeharika Infrastructure Pvt Ltd V State of Maharashtra and Others** [2021 SCC Online SC 315], it was submitted that the Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences and this Court may not thwart any investigation into Crl.M.C No.1690 of 2018 6 such offences. It is further submitted that this Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. The investigation is in the early stages, and if on the investigation, no offense is revealed, an appropriate report shall be submitted before the court, contends the learned public prosecutor. 6. I have gone through the complaint and have perused the entire records. 7. I have already narrated the allegations in the complaint lodged by the de facto complainant. Essentially the allegation is that the de facto complainant was threatened and intimidated, and he was made to part with his property which is valued in excess of one Crore for a paltry amount of Rs 16 Lakhs. The circumstances under which accused has perpetrated the offense have been stated in detail in the complaint. I find that there is a specific allegation in the complaint that the accused No 1 and 2 threatened the de facto complainant to part with his property and to sign a document stating that unless he executes the deed, they would take back the money and gold from the custody of his newly married daughter. As to whether there is any semblance of truth in the allegations is for the fact-finding Crl.M.C No.1690 of 2018 7 police to ascertain after investigation. It would also not be possible for this Court to ascertain the genuineness of the documents produced by the petitioners before this Court in this petition under Section 482 of the Code. In **Vesa Holdings P Ltd and Another V State of Kerala** (2015) 8 SCC 293, the Apex Court had occassion to hold that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. 8. In **R. Kalyani v. Janak C. Mehta and Others** [2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in exercise of powers under Section 482 will be justified in quashing the FIR. In paragraph Nos. 14 and 15 it was held as follows: 14. However, Dr. Monica Kumar and Another v. State of U.P. and Others 2008 (9) SCC p.798, para 36, held : "36.........The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage." Crl.M.C No.1690 of 2018 8 15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” The Same view was taken in **Kurukshetra University v. State of** **Haryana** [1977 (4) SCC 451], and in **Som Mittal V Government of Karnataka** [2008 (3) SCC 574] and most recently in **Tilly Gifford V Michael Floyd Eshwar and Another (** AIR 2017 SC 3823 ). 9. In **Neeharika Infrastructure Pvt Ltd V State of Maharashtra and Others** [2021 SCC Online SC 315], a Three Judge bench of the Apex Court after referring to the entire case law on the point, had occasion to again reiterate the principles that should guide this Court while exercising powers under Section 482 of the Code. It was held as under:(Paragraph 57 of the judgment) Crl.M.C No.1690 of 2018 9 57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences; ii) Courts would not thwart any investigation into the cognizable offences; iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr. P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court); v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; Crl.M.C No.1690 of 2018 10 vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr. P.C. ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating Crl.M.C No.1690 of 2018 11 officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr. P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr. P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR. Time and again, it has been emphasized by the Apex Court as well as this Court, that the power under Section 482 Cr.P.C. would not permit the High Court to go into disputed questions of fact or to appreciate the defence of the accused. The power to interdict a criminal proceeding at the stage of Crl.M.C No.1690 of 2018 12 investigation is even more rare. Broadly speaking, a criminal investigation, unless tainted by clear malafides, should not be foreclosed by a Court of Law. 10. Having gone through the materials in the light of the principles above, I am of the considered opinion that there are prima facie materials as against accused No 1 and 2 which is required to be investigated by the police and in that view of the matter, this Court will not be justified in quashing the proceedings. However, in for far as the 3rd petitioner is concerned, the only allegation is that she was the scribe who had prepared the sale deed, which was later registered. There is no other allegation that the 3rd accused had acted with prior concert and that she was aware of the design of the accused No 1 and 2. I am satisfied that the allegations in the complaint will not constitute any offense against the 3rd accused. 11. In that view of the matter, this petition is disposed of by ordering as under - a) The prayer for quashing of proceedings in so far as accused No 1 and 2 in Crime No 593/2017 of the Manjeri Police Station is rejected. - b) The prayer for quashing of proceedings insofar as it Crl.M.C No.1690 of 2018 13 concerns the 3rd accused is allowed. All further proceedings against the 3rd accused in Crime No 593/2017 of the Manjeri Police Station is quashed. - c) It is made clear that the right of the petitioners 1 and 2 to approach this Court after submission of the final report is reserved. - d) Any observations made above are made for the sole purpose of deciding this case, and the investigating agency shall investigate the matter untrammeled by any of the observations above. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No.1690 of 2018 14 ## **`APPENDIX OF CRL.MC 1690/2018`** |`PETITIONER ANNEXURES`|| |---|---| |`ANNEXURE A`|`TRUE COPY OF THE F.I.R. AND COMPLAINANT IN`| ||`CRIME NO.593/2017 OF THE MANJERI POLICE`| ||`STATION`| |`ANNEXURE B`|`TRUE COPY OF THE ASSIGNMENT DEED AS`| ||`2085/1/2016 DT,5-9-2016 OF THE`| ||`S.R.O.ETTUMANOOR.`| |`ANNEXURE C`|`TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED`| ||`BY THE VILLAGE OFFICER,KAIPPUZHA VILLAGE`| ||`DATED,28.10.2016`| |`ANNEXURE D`|`TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED`| ||`BY THE VILLAGE OFFICER,KAIPPUZHA VILLAGE`| ||`DATED,6.1.2016.`| |`ANNUXURE E`|`TRUE COPY OF THE THANDAPER ACCOUNT IN RESPECT`| ||`OF THE PROPERTY OF THE 1ST`| ||`PETITIONER,DATED,17.1.2018 AS SERIAL`| ||`NO.2018/3095/05.`| |`ANNEXURE F`|`TRUE COPY OF THE THANDAPER ACCOUNT IN RESPECT`| ||`OF THE PROPERTY OF THE 1ST .PETITIONER,DATED`| ||`17.1.2018 A SERIAL NO.2016/5148/05.`| |`ANNEXURE G`|`TRUE COPY OF THE COMPLAINT SUBMITTED BY THE`| ||`FIRST PETITIONER BEFORE THE DISTRICT POLICE`| ||`CHIEF,MALAPPURAM DATED,3.1.2018.`|