Crl.M.C.No.1520/2017

Crl.M.C.No.1520/2017 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943_ _CRL.MC NO. 1520 OF 2017_ _CRIME NO.405/2014 OF Chalissery Police Station, Palakkad AGAINST THE ORDER/JUDGMENT IN CC 1242/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS , PATTAMBI_ ## _PETITIONERS/ACCUSED NOS.1 TO 3 AND 5:_ - _1 MOHAMMED.K, AGED 57 YEARS, KOMATH HOUSE, NANTHIYANKODU DESOM, THRITHAALA ROAD, KOOTANADU, PALAKKAD DISTRICT._ _2 NISHAD K.M., AGED 26 YEARS, S/O.MOHAMMED, KOMATH HOUSE, NANTHIYANKODU DESOM,THRITHAALA ROAD, KOOTANADU, PALAKKAD DISTRICT._ _3 NISHAR K.M., AGED 23 YEARS, D/O.MOHAMMED, KOMATH HOUSE, NANTHIYANKODU DESOM,THRITHAALA ROAD, KOOTANADU, PALAKKAD DISTRICT._ _4 PRAVEEN M.U., S/O.UNNI, MARUTHAMKALYANIKKAL HOUSE, VENMANI, IDUKKI DISTRICT,PRESENTLY RESIDING AT C/O.MUHAMMED K., SURVEY NO.77/2, 77/2, 77/6, MOHAMMED RUBBER ESTATE, RAYAMANGALAM DESOM, THIRUMITTAKKODU VILLAGE, PALAKKAD DESOM._ Crl.M.C.No.1520/2017 2 _BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.POOJA PANKAJ SRI.M.REVIKRISHNAN_ ## _RESPONDENTS/COMPLAINANT AND STATE:_ _1 JOHNNY, AGED 64, S/O.LONAPPAN, MOILEEN HOUSE, CHENGAALUR P.O., PUTHUKKAD VAZHI, THRISSUR DISTRICT. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _BY ADVS. SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.S.RAJEEV SRI.V.VINAY_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION_ _ON 14.12.2021, THE COURT ON 07.01.2022 PASSED THE FOLLOWING:_ Crl.M.C.No.1520/2017 3 ## **O R D E R** Petitioners are accused Nos.1 to 3 and 5 in C.C.No.1242 of of 2015 on the file of JFCM-Pattambi. The aforesaid case was registered on the basis of Annexure-D private complaint submitted as C.M.P.No.456 of 2015. The offence alleged against the petitioners are under Sections 406, 420, 120 read with 34 IPC. 2. The allegation against the petitioners are as follows: On 09.11.2011, an agreement was entered into between the accused and the 1[st] respondent herein in connection with the permission to tap 2400 rubber trees planted in the property of the petitioners herein. The total consideration was fixed as Rs.1,80,00,000/-. Duration of the agreement was fixed as five years and as per the terms of the said agreement, the 1[st] respondent was supposed to cut and remove the rubber trees after taping the rubber on or before 09.11.2016. Annexure-B is the aforesaid agreement. The 1[st] respondent paid an amount of Crl.M.C.No.1520/2017 4 Rs.30,00,000/- at the time of execution of the said agreement and thereafter, a further amount of Rs.20,00,000/- was paid on 16.01.2012. It was also alleged that, a further amount of Rs.25,00,000/- was paid by the 1[st] respondent to the petitioner on 11.05.2012 and thus a total amount of Rs.75,00,000/- was given to the petitioners. It was also stated in Annexure-D complaint that, the 1[st] respondent was persuaded to enter into such an agreement by the petitioners by making false representations with regard to the quality and quantity of latex which can be tapped from the aforesaid rubber trees. Later, it was turned out that, the yield from the rubber trees were not as much as highlighted by the petitioners through the representations made by them, while entering into the agreement. It was also alleged that the Annexure-B agreement was entered into by the 1[st] respondent as he was made to believe by the 1[st] petitioner that the entire property belonged to him and he is the exclusive owner in possession of the same. Crl.M.C.No.1520/2017 5 However, later, it was turned out that the aforesaid property was jointly owned by the 1[st] respondent along with accused Nos.2 to 4. Later, a settlement was arrived at between the parties wherein, the petitioners have agreed to repay the amount collected by them from the 1[st] respondent. However, they paid only an amount of Rs.32,00,000/- and balance amount of Rs.43,00,000/- was never paid. The complaint was submitted in the aforesaid circumstances. 3. Before going into the contentions of the petitioner, the factual background of relating to the file the case and it’s escalation into the present proceedings, is to be examined. Initially, the 1[st] respondent submitted a complaint before the Learned Magistrate, which was under Section 156(3) Cr.P.C to the Chalissery police station, for investigation. Based on the same, Crime 405/2014 was registered by Chalisserry Police and an investigation was conducted. Upon completion of the investigation, Annexure-A final report was submitted. As per Crl.M.C.No.1520/2017 6 the final report, it was found by the police that, the complaint is false one and also found that the basic dispute involved is civil in nature. Annexure-D complaint was submitted thereafter as a protest complaint. Learned Magistrate has taken cognizance on Annexure-D private complaint, after conducting inquiry under Section 202 Cr.P.C., wherein, statements of the petitioner as well as two witnesses were recorded. 4. This Crl.M.C. is filed by the petitioners seeking to challenge the aforesaid proceedings. The 2[nd] and 3[rd] petitioners are the accused Nos.2 and 3 respectively, who are the sons of the 1[st] petitioner/1[st] accused. The 4[th] petitioner herein is the 5[th] accused and he was the manager of the 1[st] petitioner herein. 5. Heard Sri.M.Ravikrishnan, learned counsel for the petitioner, Sri.Vinay S., learned counsel for the 1[st] respondent herein and Sri.Aravind V.Mathew, learned Public Prosecutor for the State. Crl.M.C.No.1520/2017 7 6. The learned counsel for the petitioner contends that Annexure-D complaint does not disclose any of the offences alleged against the petitioners herein. The transactions between the parties were on the basis of Annexure-B agreement and the payments made by the 1[st] respondent to the petitioners herein were in fulfillment of the contractual obligations arising from the said agreement. The case of the 1[st] respondent is that Rs.75,00,000/- is paid by him, which is denied by the petitioners. The amount received was only Rs 50,00,000/-. As the 1[st] respondent conveyed that, he is unable to perform his part of agreement, a settlement was arrived at between the parties. It was mutually agreed that, towards the value of the latex already extracted by the 1[st] respondent, an amount of Rs.18,00,000/was fixed and the balance amount was agreed to be returned by the petitioners to the 1[st] respondent. Consequently, an amount of Rs.32,00,000/- was returned by the petitioners to the 1[st] respondent in two installments. The first Crl.M.C.No.1520/2017 8 installment of Rs.10,00,000/- was paid on 30.06.2013 and the 2[nd] installment of Rs.22,00,000/- was paid on 30.12.2013. Receipts of the aforesaid amounts were acknowledged by the 1[st] respondent herein on Annexure-B agreement itself. 7. By placing reliance upon the aforesaid endorsements, the learned counsel contends that in fact there is no grievance in existence in connection with the obligations by either parties on account of Annexure-B agreement. It was also pointed out that, if at all there is any dispute between the parties, that will give rise only to civil remedies and under no circumstances any culpability can be attributed to the petitioners herein. The police had conducted investigation in a proper manner and arrived at a conclusion that the dispute is civil in nature. With regard to the allegation of misleading the complainant as to the quantity of latex, it is contended that, the 1[st] respondent has entered into the agreement after visiting the properties and examining the rubber trees. As the 1[st] respondent has entered Crl.M.C.No.1520/2017 9 into agreement with open eyes, after realizing the quality of rubber trees and being convinced of the output from the same, he cannot not now turn around and raise allegations for inculpating the petitioners herein. With regard to the allegation that the 1[st] accused mislead the 1[st] respondent that the entire property is in exclusive ownership and possession of the petitioner, it was contended that, the fact that the properties were jointly owned by the 1[st] accused and his children were known to the 1[st] respondent at the time of execution of the aforesaid agreement itself. The learned counsel brought my attention to Annexure-B agreement, wherein it was specifically mentioned the name of the 1[st] accused as well as his sons who are accused Nos.2 to 3 in the aforesaid case. It was pointed out that, even going by the averments in the complaint; some of the payments were effected by 1[st] respondent to the son of the 1[st] accused. It was also contended that, in Annexure-B private complaint (protest complaint), the 1[st] respondent could not point Crl.M.C.No.1520/2017 10 out any discrepancy in the investigation conducted by the police. Apart from a mere statement that no proper investigation was conducted by the police due to political pressure, there are no materials available on record to indicate that the final report submitted by the police suffered from any manifest error or miscarriage of justice, warranting any further proceedings in the matter. Judgment rendered by this Court in **Parameswaran Nair v. Surendran and Another [2009 (1) KHC 801]** was also relied on. 8. On the other hand the learned counsel appearing for the 1[st] respondent seriously opposed the same. It is pointed out that the entire contentions raised by the petitioners are unsustainable. It was pointed out that, the 1[st] respondent entered into agreement only because of the representation made by the petitioners with regard to the quality and quantity of the yield from the rubber trees which was later turned out to be false representations. According to the learned counsel, the Crl.M.C.No.1520/2017 11 aforesaid facts are questions of facts, which cannot be considered in a proceeding of this nature. He asserts that the contents of Annexure-D complaint along with the statements of witnesses attract offences alleged against the petitioners herein and therefore it is not a fit case in which powers of this Court under Section 482 Cr.P.C can be invoked. 9. The question that emerges is whether this is a fit case in which powers of this Court under Section 482 Cr.P.C. can be invoked. The offences alleged are under Sections 406, 420, 120 read with Section 34 IPC. The basic dispute commences from Annexure-B agreement executed between the parties. There is no dispute as to the execution thereof. The case of the 1[st] respondent is that, he entered into the aforesaid agreement by believing false representations made by the petitioners. According to him the petitioners have made two false representations for inducing the 1[st] respondent to enter into the agreement. The first false representation was that, the 1[st] Crl.M.C.No.1520/2017 12 respondent was informed that the entire property wherein, 2400 rubber trees are standing, is in exclusive ownership and possession of the 1[st] petitioner herein. However, later it was turned out that the aforesaid properties were jointly owned by the 1[st] accused along with his sons, who are accused Nos.2 to 4. However, on going through Annexure-B agreement, it can be seen that, names of all the parties, i.e accused Nos.1 to 4 are specifically mentioned as the first party collectively, even though, the agreement was signed only the 1[st] accused. Apart from the above, endorsement contained in Annexure-B as to the receipt of an amount of Rs.20,00,000/- on 16.01.2012, was made by the 2[nd] accused, the son of the 1[st] accused. The aforesaid payment is admittedly made to the 2[nd] accused even going by the averments in the complaint. Therefore, it is evident that the 1[st] respondent was aware of existence of rights of other accused persons on the aforesaid property. Further, the 1[st] respondent does not have a case that, lack of absolute ownership over the Crl.M.C.No.1520/2017 13 property by the 1[st] accused, came in the way of execution of the agreement in any manner, at any point of time. Non fulfillment of obligations arising from Annexure-B agreement were not at all related to any reasons attributable to the lack of absolute title on the part of the 1[st] petitioner. In such circumstances, even if it is assumed for argument sake that, a false representation in that regard was made to the 1[st] respondent, it never had any consequences and it never affected the rights of the 1[st] respondent. Therefore, it is completely immaterial and would not attract any culpability warranting prosecution against petitioners for the offences punishable under Section 420 IPC. 10. Another false representation alleged to have been made by the petitioners is that, they claimed very high yield from the rubber trees, but later it was turned out that the latex which the 1[st] respondent can be extracted from the property were much less. The specific case of the 1[st] respondent is that, after execution of the agreement the 5[th] accused, the manager Crl.M.C.No.1520/2017 14 of the 1[st] accused informed the 1[st] respondent that, the entire rubber trees were already tapped by the petitioners to the maximum possible extent. However, in my view, the aforesaid contentions would not attract any penal consequences warranting prosecution under Sections 420 and 406 IPC. This is particularly because, the 1[st] respondent had entered into the agreement upon his own volition, after being convinced of the quantity and quality of the rubber trees in the properties. If at all there is any defect in the rubber trees, it would indicate the failure on the part of the 1[st] respondent in judging the quality of the rubber trees in a proper manner, before entering into the agreement. The 1[st] respondent had every opportunity to examine the quality of the rubber trees before entering into the agreement. Falcities in the representations made by the accused persons as to the quantity of the yield even if accepted to be true for argument sake, would not attract a dishonest inducement on the part of the accused persons in the peculiar Crl.M.C.No.1520/2017 15 facts and circumstances of the case. The aforesaid action by itself would not attract the offences punishable under Section 406 IPC also. The transaction between the parties does not indicate any dishonest misappropriation of any property. 11. The learned counsel for the 1[st] respondent contends that, while entering into the agreement, the 1[st] petitioner had shown him certain details of the sale of latex made by the accused persons to M/s.V.M.Rubbers. By showing the quantity of latex shown in the aforesaid bills, the output from the rubber trees were shown in an escalated manner. Aforesaid receipt evidencing the said transactions were produced by the 1[st] respondent along with Annexure-D complaint as document Nos.2 to 4. Copies of the aforesaid receipts were provided to me. A perusal of the same would indicate that the receipts do not contain any seal or signature of any person and those are just computer print outs without any sort of authentications. It only shows that the 1[st] accused had sold certain quantities of Crl.M.C.No.1520/2017 16 latex to the said V.M.Rubbers on 11.02.2011, 28.04.2011 and 07.07.2011. The aforesaid documents, even if are accepted, would not indicate that the aforesaid sale of latex were pertaining to the properties in question. Thus the aforesaid documents cannot be relied upon for the purpose of attributing culpability upon the petitioners herein. Therefore, reliance placed on the said documents by the 1[st] respondent is also not sustainable. 12. Another discrepancy which is discernible from the records, is relating to the total amount paid by the 1[st] respondent. Going by the contents of Annexure-B agreement and endorsements made thereon, it can be seen that at the time of execution of Annexure-B agreement, an amount of Rs.30,00,000/- was paid by the 1[st] respondent. Later on 16.01.2012 a further amount of Rs.20,00,000/- was paid by the 1[st] respondent to the 2[nd] petitioner and the receipt of the same is acknowledged by way of endorsement of Annexure-B Crl.M.C.No.1520/2017 17 agreement. However, in Annexure-D complaint, it is averred by the 1[st] respondent that, apart from the aforesaid payment, a further sum of Rs.25,00,000/- was also made. But absolutely no document to substantiate the aforesaid payment is also produced along with the complaint. Even though, the petitioner stated in the complaint that the said amount of Rs.25,00,000/was paid on 11.05.2012, in the sworn statement, the said date is not mentioned. In the statement of CW2 and CW3 also the date of the said payments are not mentioned. In the absence of any evidence regarding the payment effected on the said date, the aforesaid contention is also highly doubtful. The aforesaid finding is more evident from the other materials as well. In Annexure-B, there is further endorsement to the effect that, on the basis of mediation in the presence of certain mediators, it was agreed by the accused persons that, the entire dispute is settled by paying an amount of Rs.32,00,000/- to the 1[st] respondent and the same was effected by 30.12.2013 also. The Crl.M.C.No.1520/2017 18 aforesaid endorsement contain the signature of the 1[st] respondent as well. However, the 1[st] respondent is disputing the aforesaid aspect. But it is discernible from Annexure-A final report that in the first complaint submitted, the case of the 1[st] respondent is that, the 1[st] respondent have paid a total of Rs.1,25,00,000/-. Later in the investigation it was revealed that though total amount paid by the 1[st] respondent was Rs.50,00,000/- only. It is also discernible from the final report that, consequent to the settlement arrived on between the parties, they have agreed to fix the price of latex already extracted by the 1[st] respondent as Rs.18,00,000/-, and the accused persons have agreed to return the balance of Rs.32,00,000/- to the 1[st] respondent. Thus it is evident that with regard to the total payment made by the 1[st] respondent also there is no consistent case for the 1[st] respondent. The aforesaid allegations were investigated by the police and submitted Annexure-A final report. In such circumstances, I do not think Crl.M.C.No.1520/2017 19 that the allegations raised by the 1[st] respondent would attract any of the offences as alleged against the petitioners herein. 13. It is well settled position of law that if the dispute involved is civil in nature, no culpability can be attributed against the parties to the same. In this case, the basic dispute emerges from Annexure-B agreement entered into by the parties with open eyes. The allegation is that, yield which the petitioners assured from the rubber trees at the time of entering into the agreement, were not received after the 1[st] respondent was put in possession of the same. In my view any such statements even if made by the petitioners would not attract any offences of Sections 420 or 406 of IPC. It is common that the seller of a product or property, often makes representations highlighting the features and qualities of the same, in an exaggerated manner. It is for the buyer, to examine the same and arrive at a realistic assessment thereof. In this case, the property is a rubber plantation, and the 1[st] respondent had Crl.M.C.No.1520/2017 20 every opportunity to examine the same. Making such exaggerated statements for the purpose of effecting the sale cannot be treated as the statements made with dishonest intention, unless the said statements are completely incorrect and cleverly concealed in the manner impossible to be detected, despite exercise of due diligence by a prudent person. In this case, the representation made were only with respect to the quantity of the yield of rubber trees and the 1[st] respondent does not have a case that, the petitioners have offered a specified and well defined quantity thereof. Without an allegation that specified ……. At the most, it would fall under category of an exaggerated statement, but would not amount to a statement with dishonest intention. In order to attract the criminal offence of cheating or criminal breach of trust, dishonest intention must be in existence. The loss or harm, if any, occurred to any party, consequent to any such action/statement, falls short of an act/statement with dishonest intention, can have only civil Crl.M.C.No.1520/2017 21 consequences and no culpability can be attributed in respect of the same. 14. Similarly, even though, misrepresentation as to the exclusive title of the 1[st] accused is raised, it is seen from the transactions that it never caused any obstruction in execution of the agreement by either parties. Therefore, offences alleged against the petitioner are not attracted. If at all the 1[st] respondent had sustained any damages, it is for him to initiate proper proceedings before a competent civil court. 15. There is yet another reason, which makes the proceedings pursuant to Annexure-D complaint unsustainable. In the decision of this court in **Parameswaran Nair’s case** (supra), in paragraph Nos.17 and 18, it was observed as follows: 17. The well settled legal propositions can be summed up as follows; (1) When a final report is made by an officer of the Police Station under sub section 2 of section 173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice Crl.M.C.No.1520/2017 22 must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. (2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to CRRP 1634/08 disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report. (3) Magistrate can direct further investigation under sub section 3 of Section 156. (4) Magistrate can take cognizance on the final report itself under Section 190(1)(b) disregarding the opinion of the police and issue summons. (5) Magistrate can take cognizance on the original complaint, where investigation under sub Section 3 of Section 156 was earlier ordered and record the statement of the complainant and the witnesses as provided under CRRP 1634/08 Section 200 and can conduct an inquiry, In that inquiry Magistrate can Crl.M.C.No.1520/2017 23 direct investigation by a police officer or such other officer as provided under Section 202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued. (6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though complainant can thereafter file a second complaint it will lie only if there was a manifest error or manifest miscarriage of justice in the previous order or there is any exceptional circumstances like new facts which the complainant had no knowledge of or with due diligence CRRP 1634/08 could not have brought forward in the previous proceedings. 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 Crl.M.C.No.1520/2017 24 including the final report made by the police under sub Section 2 of Section 173, it is advisable for the Magistrate to record that the final report is not accepted and on the entire materials he is of the opinion that there is ground to proceed and issue summons under Section 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 CRRP 1634/08 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 or 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. 16. In the light of the aforesaid observations also, the proceedings pursuant to Annexure-D complaint are unsustainable. The 1[st] respondent could not point out any Crl.M.C.No.1520/2017 25 manifest error or manifest miscarriage of justice in the conclusions arrived at by the police. Only averment in Annexure D complaint with respect to the final report is that the police failed to conduct a proper investigation. However, that by itself is sufficient to maintain a complaint, particularly in the facts and circumstances as explained in above. In such circumstances, I am of the view that this is a fit case, in which powers of this Court under Section 482 Cr.P.C can be invoked. Accordingly, this Crl.M.C is allowed. AnnexureD complaint and all further proceedings in C.C.No.1242 of 2015 as against the petitioners herein are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/20.12.21 Crl.M.C.No.1520/2017 26 ## _APPENDIX OF CRL.MC 1520/2017_ _PETITIONER ANNEXURES_ _ANNEXURE A A TRUE COPY OF THE REFER REPORT, IN CRIME NO.405/2014 OF THE CHALISSERY POLICE STATION, PALAKKAD DISTRICT._ _ANNEXURE B A TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE ACCUSED AND THE 1ST RESPONDENT, DATED 09-11-2011._ _ANNEXURE C A TRUE COPY OF THE REFER NOTICE SERVED ON THE 1ST RESPONDENT, CONTAINING THE ACKNOWLEDGMENT OF THE 1ST RESPONDENT UPON RECEIPT OF THE SAME._ _ANNEXURE D A TRUE COPY OF THE PRIVATE/PROTEST COMPLAINT PREFERRED BY THE 1ST RESPONDENT, AGAINST THE ACCUSED._ _ANNEXURE E A TRUE COPY OF THE SWORN STATEMENT OF THE 1ST RESPONDENT RECORDED BY THE COURT BELOW._ _ANNEXURE F A TRUE COPY OF THE SWORN STATEMENT OF CW2 RECORDED BY THE COURT BELOW._ _ANNEXURE G A TRUE COPY SWORN STATEMENT OF CW3 RECORDED BY THE COURT BELOW._ _ANNEXURE H A TRUE COPY OF THE DIARY EXTRACT OF THE PROCEEDINGS THUS FAR TAKEN IN C.C.NO.1241/2015 BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, PATTAMBI._