Crl.M.C.No.4422 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** ## **Crl.MC.No.4422 of 2016** **CRIME NO.2074/2014 OF THE CHENGANNUR POLICE STATION NOW BEING INVESTIGATED BY CRIME BRANCH, KOLLAM AS FILE NO.95 CR EOW-1 KLM 2015** **C.C. NO.1813/2015 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, PUNALUR** ## **PETITIONERS / ACCUSED:** - **1 K.JOHN THOMAS, AGED 72 YEARS, S/O.K.G.THOMAS, KOTTARATHIL HOUSE, ANGADICAL SOUTH P.O., CHENGANNUR-689 122.** - **2 DON VARGHESE ISSAC, AGED 25 YEARS, S/O.THEKKETHIL VARGHESE ISSAC, AVICOTTU THEKKETHIL, KIZHAKKEKKARA MURI, KOTTARAKKARA VILLAGE P.O.-691 506.** - **3 SUSAN ISSAC, AGED 51 YEARS, W/O.THEKKETHIL VARGHESE ISSAC, AVICOTTU THEKKETHIL, KIZHAKKEKKARA MURI, KOTTARAKKARA VILLAGE P.O.-691 506.** - **4 S.VENUGOPAL, AGED 59 YEARS, S/O.SIVASANAKRA PILLAI, SIVODHAYAM, KIZHEKKEKKARA, KOTTARAKKARA VILLAGE P.O.-691 506.** **BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** ## **RESPONDENTS / COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE CRIME BRANCH, KOLLAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM P.O. - 682 031.** Crl.M.C.No.4422 of 2016 2 **2 BIJU THOMAS, S/O. THOMAS OMMEEN, KOCHVILAYIL,KOZHENCHER THALUK, PATHANAMTHITTA DISTRICT-678001.** **(ADDITIONAL R2 IMPLEADED AS PER ORDER DATED 04/08/2016 IN CRL.M.A.NO.7751/2016)** **BY ADVS. SMT.K.KRISHNA SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.S.RAJEEV SRI.V.VINAY** ## **OTHER PRESENT:** **SMT. M.K.PUSHPALATHA, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 Crl.M.C.No.4422 of 2016 ## **O R D E R** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioners herein are the accused Nos.1 to 4 in Crime No.2074 of 2014 registered at the Chengannur Police Station, which is now being investigated by Crime Branch, Kollam. In the said crime, they are accused of having committed offences punishable under Section 17 of the Money Lenders Act, 1958, Section 3 r/w. 4 of the Kerala Prohibition of Charging Exorbitant Interest Act, 2012 and Section 420 r/w. 34 of the IPC. 3. The 3[rd] petitioner is the wife of late T.V.Issac and the 2[nd] petitioner is her son. The 1[st] petitioner is the brother-in-law of T.V.Issac. The 4[th] petitioner is the driver of petitioners 2 and 3. 4. The prosecution allegation is that the 2[nd] respondent along with his family were engaged in the running of a spare part business at Sharjah. Late T.V.Issac was a financier and was based in Sharjah. When the 2[nd] respondent was financially in dire straits, he had to approach the aforesaid T.V.Issac and avail a loan of Rs.7.5 lakhs. Towards security, T.V.Issac is alleged to have demanded and obtained blank cheques, signed blank papers etc., of the de facto 4 Crl.M.C.No.4422 of 2016 complainant and his wife and also a power of attorney dated 15.11.2014 signed by his wife as per which, T.V.Issac was authorized to negotiate and sell her property having an extent of 14.57 Ares. The understanding was that the sum of Rs.7.5 lakhs would be handed over to his father-in-law, Sri. Kurian Philipose, who was residing at Chengannur. It is alleged that some time in the year 2005, the aforesaid T.V.Issac entrusted a sum of Rs.7.5 lakhs with Sri.Kurian Philipose and obtained from him the original title deed of the property. It is further alleged that the 2[nd] respondent repaid a total sum of Rs.18 lakhs to the aforesaid T.V.Issac. However, against the terms of understanding between the parties, T.V.Issac presented the cheques at Sharjah and after getting it dishonoured, initiated proceedings consequent to which, the 2[nd] respondent and his wife were arrested and incarcerated. It is alleged that while the 2[nd] respondent was undergoing incarceration, the aforesaid T.V.Issac raided their home at Sharjah and took away their valuables, including passport. Later, the de facto complainant came back to India in 2013 and he realized that a fraudulent sale deed had been executed by T.V.Issac on the strength of the power of attorney in favour of the 1[st] petitioner. T.V.Issac had by then left for his heavenly abode on 26.09.2010. This, is in essence, the allegations which led to the registration of the crime. 5 Crl.M.C.No.4422 of 2016 5. Sri. Rinny Stephen Chamaparampil, the learned counsel appearing for the petitioners, submitted that the entire transactions were between the 2[nd] respondent and T.V.Issac, who is now no more. The amount was advanced by T.V.Issac and even according to the 2[nd] respondent, the documents were entrusted with him. Much prior to the registration of FIR on 25.10.2014, T.V.Issac had died. The only allegation against the 1[st] petitioner is that he is the vendee of the assignment deed executed by T.V.Issac. He would also refer to the judgments in civil proceedings which have been produced as Annexures-A4, A5, A9, and A10 to bring home his point that the entire prosecution allegations, even if it is admitted as such, will not make out offence under the Kerala Money Lenders Act, the Prohibition of Charging Exorbitant Interest Act or under the IPC as against the petitioners herein. 6. Sri.V.Vinay, the learned counsel appearing for the 2[nd] respondent, on the other hand, would urge that the property having value of several Crores was usurped by the aforesaid T.V.Issac with the assistance of the petitioners for a paltry amount. According to the learned counsel, the allegation in the complaint and the investigation has revealed that the petitioners also had a role to play in the acts committed by T.V.Issac. 6 Crl.M.C.No.4422 of 2016 7. I have considered the submissions advanced and have gone through the materials made available. 8. The prosecution records would show that the monetary transactions were between T.V.Issac, the husband of the 3[rd] petitioner, and the 2[nd] respondent and that was in the year 2005. The transactions had taken place at Sharjah. Admittedly, Annexure-A2 power of attorney was executed by wife of the 2[nd] respondent in favour of T.V.Issac on 15.11.2004 while she was abroad. The power of attorney was signed in the presence of the Vice Consul, Dubai. On the strength of the power of attorney, a sale deed was executed by T.V.Issac in favour of the 1[st] petitioner on 17.6.2005. T.V.Issac died on 26.09.2010. The complaint on the strength of which the crime was registered was filed on 21.10.2014, about four years after the death of T.V.Issac. Except for a vague allegation that the petitioners herein have been carrying out money lending operations after the death of T.V.Issac and that they had benefited from his acts, there is no specific allegation that the petitioners herein had committed any act attracting the provisions of the Money Lenders Act or the Prohibition of Charging Exorbitant Interest Act. In order to attract the offence under Section 420, there must be an allegation that the petitioners had fradulently induced the 7 Crl.M.C.No.4422 of 2016 de facto complainant to part with money and to cause wrongful loss. No such allegation is there as against the petitioners. 9. Insofar as the assignment of the property is concerned, the same has been the subject matter of several litigations commencing from 2008 onwards. If the 2[nd] respondent had any bona fides, he should have moved the civil court within the period of limitation and got his rights declared. Instead, the records reveal that Kurian Philipose and his wife, the in-laws of the 2[nd] respondent, had instituted a suit arraying their own daughter, Anitha Anna Kurian, T.V.Issac and the 1[st] petitioner, as defendants, contending that the deed executed by their daughter is a fraudulent deed. They also raised a contention that the settlement deed executed by them in favour of their daughter was a sham document. The wife of the 2[nd] respondent did not appear before the civil court though the suit was instituted by her parents. She was set ex parte and the case was proceeded with. By Annexure-A4 judgment, the said suit was dismissed. The contentions advanced by the plaintiffs did not find favour with the learned Sub Judge. Though an appeal was preferred, the same was dismissed by Annexure-A5 judgment. It also appears that the in-laws of the 2[nd] respondent thereafter preferred O.S. No.323 of 2011 seeking relief of fixation of boundary by arraying 8 Crl.M.C.No.4422 of 2016 the 1[st] petitioner as the defendant. In the said suit, it is admitted that the 1[st] petitioner is the owner of the adjacent property. Furthermore, the wife of the 2[nd] respondent had instituted O.S. No.170 of 2014 before the Munsiff’s Court, Chengannur seeking a declaration that the deed dated 17.07.2005 executed by T.V.Issac in favour of the 1[st] petitioner herein was null and void. Though T.V.Issac had expired in the year 2010, he has been arrayed as the 1[st] defendant therein. It is borne out from Annexure-A9 judgment dated 10.10.2017 that the said suit was dismissed for default. It is also borne out from Annexure-A10 that though the suit was restored later, it was again dismissed during the pendency of this petition on 15.02.2019. 10. The conclusion is inescapable that the criminal proceedings have been initiated to put pressure on the petitioners, who, except for being the relatives and driver of T.V.Issac, had no role in the transactions. As has been held by the Apex Court in **Indian Oil Corporation v. NEPC India Ltd.** [(2006) 6 SCC 736], there is a growing tendency on the part of certain litigants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature. This is with a view to apply pressure on the accused to force them to come to a settlement. The criminal courts have 9 Crl.M.C.No.4422 of 2016 been cautioned to ensure that proceedings before them are not used for settling scores or to pressurize parties to settle disputes. In the facts of the instant case, I have no doubt in my mind that the allegations will not constitute the offence under Section 420 of the IPC, the Money Lenders Act, 1958 or under the Exorbitant Interest Act, 2012. 11. It is by now settled that the powers possessed by this Court under Section 482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. However, if on appreciation of the final report as a whole and if it appears that the ingredients of the offence are absent and that the continuance of proceedings will only result in abuse of process, this Court will be well justified in quashing the proceedings in exercise of its inherent powers. Having gone through the entire materials, I am of the considered view that the initiation of prosecution proceedings against the petitioners herein cannot be regarded as a legitimate exercise. None of the ingredients of the alleged offences are made out. It would be an abuse of process of court to allow any action which would result in injustice. I am satisfied that the initiation of prosecution proceedings would amount to abuse of process of court and its quashment would serve the ends of justice. Crl.M.C.No.4422 of 2016 10 In the result, this petition is allowed. Annexure-A1 FIR in Crime No.2074 of 2014 of the Chengannur Police Station and all further proceedings pursuant thereto against the petitioners now pending as File No.95 CR EOW-1 KLM 2015 before the Crime Branch, Kollam, are quashed. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** krj 11 Crl.M.C.No.4422 of 2016 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.2074/2014 OF THE CHENGANNUR POLICE STATION.** **ANNEXURE A2 A TRUE COPY OF THE POWER OF ATTORNEY DATED 15.11.2014.** **ANNEXURE A3 A TRUE COPY OF THE SALE DEED NO.1692/2005. ANNEXURE A4 A TRUE COPY OF THE JUDGMENT DATED 30.09.2008 OF THE SUB COURT CHENGANNUR IN O.S.NO.57/2008.** **ANNEXURE A5 A TRUE COPY OF THE JUDGMENT DATED 31.03.2014 OF THE ADDITIONAL DISTRICT COURT-I, MAVELIKARA IN A.S.NO.61/2009.** - **ANNEXURE A6 TRUE COPY OF THE PLAINT IN O.S.NO.323/2011 OF THE MUNSIFF'S COURT CHENGANNUR.** - **ANNEXURE A7 A TRUE COPY OF THE PLAINT IN O.S.NO.170/2014 OF THE MUNSIFF'S COURT CHENGANNUR.** **ANNEXURE A8 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS 2ND AND 3 IN O.S.NO.170/2014 OF THE MUNSIFF'S COURT CHENGANNUR.** **ANNEXURE A9 TRUE COPY OF THE JUDGMENT DATED 10/10/2017 IN O.S. NO.170/2014 OF THE MUNSIFF’S COURT, CHENGANNUR.** **ANNEXURE A10: TRUE COPY OF JUDGMENT DATED 15/02/2019 IN O.S. NO.170/2014 OF THE MUNSIFF’S COURT, CHENGANNUR.** `