CRL.MC NO. 1957 OF 2022

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.` ``` TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945 ``` ## `CRL.MC NO. 1957 OF 2022` - `[TO QUASH PROCEEDING IN C.C.NO.693/2018 PENDING BEFORE THE JFMC-III (TEMPORARY) KOLLAM WHICH AROSE FROM THE PROTEST COMPLAINT FILED TO THE REFER REPORT IN CRIME NO.1175/2017 OF KOLLAM WEST POLICE STATION, KOLLAM]` ## `PETITIONERS/ACCUSED NOS.1,2,4 & 5:` - `1 SASEENDRA BABU,AGED 66 YEARS MWRA 56, MUNDAKKAL WEST, KOLLLAM, PIN - 691010` - `2 PADMAVATHY AMMA,AGED 79 YEARS SREE NARAYANA VILASOM HOUSE, POOTHAKULAM VILLAGE, KOLLAM, PIN - 691302` - `3 HARIKRISHNAN,AGED 36 YEARS CHITOOR HOUSEM PUNNATHALA, THIRUMULLAVARAM P.O, KOLLAM, PIN - 691012` - `4 SARASWATHY,AGED 70 YEARS CHITOOR HOUSEM PUNNATHALA, THIRUMULLAVARAM P.O, KOLLAM, PIN - 691012 BY ADVS. ARUN BABU G.HARIPRASAD ARUN K.J. ALEN.C.LAZAR` ## `RESPONDENTS/STATE/DEFACTO COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2SUB INSPECTOR OF POLICE KOLLAM WEST POLICE STATION, KOLLAM, PIN - 691013 3ADARSH AGED 38 YEARS VIDYA NAGAR 55, CHITTURTHODIYIL VEEDY, KOTTAKKAKAM WARD, KOLLAM WEST VILLAGE, PIN - 691001 BY ADVS. R1 AND R2 BY SMT.SEENA C., PUBLIC PROSECUTOR R3 BY ADV.BIJU.C.ABRAHAM(K/000957/1993) ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 7.7.2023, ``` ``` THE COURT ON 19.09.2023 PASSED THE FOLLOWING: ``` CRL.MC No.1957/2022 2 ## `O R D E R` The petitioners are the accused Nos.1,2,4 and 5 in C.C. No.693/2018 on the files of the Judicial First Class Magistrate Court-III (Temporary), Kollam. Initially, Crime No.1175/2017 was registered by Kollam West Police Station against the accused persons, total six in number, on the basis of a complaint submitted by the 3[rd] respondent/defacto complainant. The offences alleged were under Sections 420,468,506(ii) r/w. Section 34 of the Indian Penal Code (IPC). On the basis of the same, an investigation was conducted by the police and thereupon Annexure-2 refer report was submitted by the police with the conclusion that, the dispute highlighted in the complaint was civil in nature. As against the same, a protest complaint was submitted by the 3[rd] respondent which was taken cognizance by the learned Magistrate as per Annexure-6 order after recording the sworn statement of the defacto complainant and the witnesses. This Crl.M.C. is filed challenging Annexure-6 order and further proceedings pursuant to the same including the proceedings in C.C.No.693/2018. 2. The complaint submitted by the defacto complainant contains the following averments; the 3[rd] respondent was the owner in possession of a property having an extent of 1.62 Ares with an excess land of 2.5 cents comprised in Re-survey No.102/2-1 in Block No.207 of Kollam West Village CRL.MC No.1957/2022 3 which originally belonged to his father. The 3[rd] accused, the brother of the father of the 3[rd] respondent herein whose property was lying adjacent to the property of the 3[rd] respondent, along with the accused Nos.4 to 6, appraised the 3[rd] respondent that, if the property of the 3[rd] respondent is conveyed to the 6[th] accused, the 3[rd] accused shall transfer a portion of the property of the 3[rd] accused on its southern side with a residential building, to the 3[rd] respondent. Believing the words of the said accused, the 3[rd] respondent executed a sale deed bearing Document No.1896/2006 transferring his property in the name of the 6[th] accused. According to him, the said sale deed was executed without collecting any remuneration, as the 3[rd] accused had agreed to convey the property on the southern side along with the residential building in his favour. According to him, an agreement to that effect was also executed between the parties and the possession of the said property was also given to the 3[rd] respondent. Later, instead of transferring the property to the 3[rd] respondent, the 3[rd] accused transferred the said property in the name of the 2[nd] accused, the mother of the 1[st] accused, in discharge of the liability of the 3[rd] accused towards the 1[st] accused. The said property was later transferred to the 4[th] accused as per sale deed bearing Document No.1173/2013 on 5.8.2013. Thereafter, the said property was again transferred by the 4[th] accused on 18.02.2014 as per sale deed No.398/2014 in the name of the 2[nd] accused. It is further CRL.MC No.1957/2022 4 alleged that, thereafter, accused Nos. 1 to 6 in furtherance of their common intention were attempting to evict the 3[rd] respondent from the said property. According to the 3[rd] respondent, all the said acts were committed jointly by accused Nos.1 to 6 in furtherance of their common intention to make unlawful gains by cheating the 3[rd] respondent. The complaint was submitted in such circumstances. As mentioned above, initially a crime registered and after investigation, the police file a refer report and against the same, the 3[rd] respondent filed a protest complaint, which was taken cognizance thereon. 3. The cognizance taken by the learned Magistrate on the aforesaid protest complaint is under challenge in this Crl.M.C. 4. Heard Sri. Arun Babu, the learned counsel appearing for the petitioners, Smt. Seena C, the learned Public Prosecutor for the State and Sri. Biju C. Abraham, the learned counsel appearing for the 3[rd] respondent. 5. Among several contentions, one of the crucial contentions raised by the learned counsel for the petitioners is that, none of the offences alleged against the petitioners would not be attracted, as the transactions referred to in the complaint are civil in nature. It was also pointed out that, the 3[rd] respondent had already approached the Munsiff's Court, Kollam by filing O.S.No.214/2018, seeking a decree of declaration that the title and possession of the plaint schedule property which is the property in CRL.MC No.1957/2022 5 question here, is vested with the 3[rd] respondent by virtue of the agreement dated 14.6.2007 executed by the 3[rd] accused in favour of the 3[rd] respondent in exchange of the property of the 3[rd] respondent by way of sale deed No.1896/2006 to the 6[th] accused and also to declare that, the sale deed No.2992/2007 executed by the 3[rd] accused and sale deed No.298/2014 executed by the 4[th] accused are null and void. Consequential injunction was also sought from restraining the accused persons from trespassing into the said property. Thus, since the complainant had already approached the civil court, it should have been held that, the criminal proceedings would not be legally sustainable, as the transactions are civil in nature. It was further contended that, Annexure-6 order passed by the learned Magistrate is liable to be interfered with as the said order was passed without any reference to the final report submitted by the Police after investigation, wherein it was found that the transaction was civil in nature. Reliance was placed on the decision rendered by this Court in **Satheesh Kumar v. State of Kerala [2021 KHC 74] and Biju K. Peter and Ors v. State of Kerala [2022 (2) KHC 262]** . 6. On the other hand, the learned counsel for the 3[rd] respondent would oppose the aforesaid contentions by pointing out that, the averments in the complaint and the statements of the defacto complainant and other witnesses, would clearly make out the offence. The learned Magistrate CRL.MC No.1957/2022 6 have taken cognizance on the protest complaint after being satisfied about the ingredients of the offences and hence, no interference is warranted. It was also pointed out that, the said order was passed in the year 2017 and the challenge against the same was made only in the year, 2022. 7. I have carefully gone through the records. One of the crucial aspects to be noticed is that, in Annexure-6 order there is absolutely no reference about the contents of the refer report submitted by the police. In this regard, the observations made by this Court in **Parameswaran Nair v. Surendran and Another [2009(1) KLT 794]** are very much relevant. The relevant portion of the said decision is extracted hereunder: "18. When the Magistrate issue notice to the complainant on receipt of the final report and grants opportunity to the complainant to show why cognizance of the offence is to be taken and the complainant files a protest complaint, it is to be treated only as his objections to the final report, stating his reasons why the report cannot be accepted, if the Magistrate records his statement and that of the witnesses and decides to take cognizance of the offence, after considering all the materials including the final report made by the police under sub-s. (2) of S.173, it is advisable for the Magistrate to record that the final report is not Crl.M.C.No.6064 of 2017 accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under S.204 of Code of Criminal Procedure. But the fact that no specific order was recorded that final report is not accepted or fact that the decision to take cognizance of the offence and issue process was recorded in the protest complaint, by themselves are not fatal, if the records show that Magistrate has considered all the relevant materials and applied his mind. If after complying these procedures, an order not to take cognizance is passed by the Magistrate, then a second complaint will lie, only if there was any manifest error or manifest miscarriage of justice in the previous order of the complainant relies on new facts or materials which was not to his knowledge or with reasonable diligence could not have brought forward in the previous proceedings.” The said decision was followed by this Court in a recent decision rendered CRL.MC No.1957/2022 7 in **Satheesh Kumar's** case (supra). Thus, it is evident that, the Magistrate should not have taken cognizance without referring to the contents of the refer report. As rightly pointed out by the learned counsel for the petitioners, in this case, Annexure-6 order was passed without referring to the contents of the refer report which omission is very crucial. ## 8. In **Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5** **SCC 749,** the Hon’ble Supreme Court has observed as follows: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. 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.” In the light of the observations made in the decisions referred to above, Annexure -6 order is liable to be set aside. 9. Even though the learned counsel for the petitioners contended that, the transactions are civil in nature and no offence would be attracted by placing reliance upon the decision rendered by this Court in **Biju K. Peter's case (supra)** , I do not intend to decide the said question, as it is already found that, the order taking cognizance by the Magistrate itself was CRL.MC No.1957/2022 8 not legally sustainable. Therefore, it is a matter to be considered by the learned Magistrate. 10. In such circumstances, this Crl.M.C. is allowed, Annexure-6 order passed by the learned Magistrate in CMP No.7120/2017 is hereby set aside and the matter is remitted back to the said Magistrate for fresh consideration, after taking into account the contents of the refer report submitted by the police and also as to the finding in the said report as to the civil nature of the transactions. The said decision shall be taken by the learned Magistrate after hearing the complainant and the Public Prosecutor concerned and an order shall be passed with specific reference to the matters referred to above. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk CRL.MC No.1957/2022 9 ## `APPENDIX OF CRL.MC 1957/2022` |`PETITIONERS’ ANNEXURES`|| |---|---| |`Annexure1`|`TRUE COPY OF THE FIR 1175/2017 DATED`| ||`01/06/2017 WITH THE CMP 3718/2019`| |`Annexure2`|`TRUE COPY OF THE REFER CHARGE DATED 03.08.2017`| ||`SUBMITTED BY THE 2ND RESPONDENT IN FIR`| ||`1175/2017 BEFORE JFMC-III(TEMPORARY) KOLLAM`| |`ANNEXURE3`|`CERTIFIED COPY OF PROTEST COMPLAINT, CMP`| ||`7120/2017, FILED BY THE 3RD RESPONDENT BEFORE`| ||`THE JFMC-III (TEMPORARY) KOLLAM`| |`ANNEXURE4`|`CERTIFIED COPY OF THE DEPOSITION IN CMP`| ||`7120/2017 ON 24/03/2018 BEFORE JFMC-III`| ||`(TEMPORARY) KOLLAM`| |`ANNEXURE5`|`CERTIFIED COPY OF THE DEPOSITION IN CMP`| ||`7120/2017 ON 24/03/2018 BEFORE JFMC-III`| ||`(TEMPORARY)KOLLAM`| |`ANNEXURE6`|`TRUE COPY OF THE ORDER DATED 01/09/2018 IN CMP`| ||`7120/2017 OF JFMC-III (TEMPORARY) KOLLAM`| |`ANNEXURE7`|`TRUE COPY OF THE SALE DEED BEARING NO`| ||`1896/2007 DATED 14/11/2007 OF KOLLAM SRO)`| ||`EXECUTED BY THE 3RD RESPONDENT TO THE`| ||`SHAMSUDEEN (6TH ACCUSED)`| |`ANNEXURE8`|`TRUE COPY OF THE SALE DEED BEARING NO`| ||`2992/2007 DATED 08/10/2007 OF KOLLAM SRO`| ||`EXECUTED BY THE THULASI (3RD ACCUSED) TO THE`| ||`2ND PETITIONER`| |`ANNEXURE9`|`TRUE COPY OF THE PLAINT IN OS 214/2018 DATED`| ||`28/02/2018 PENDING BEFORE THE MUNSIFF COURT`| ||`KOLLAM`|