Dr. K.P.V. Narayanan and Chathoth Subha v. Chathoth Malini and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 Crl.MC.No. 3373 of 2005() ------------------------CC.178/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... PETITIONER: ACCUSED. -------------------- 1. DR.K.P.V.NARAYANAN, S/O.RAMAN, AGED 50 YEARS, PHYSCIAN, RESIDING AT DEEPAM, NEAR TOWN HALL, THALASSERY, THALASSERY TALUK, KANNUR DISTRICT. 2. CHATHOTH SUBHA, W/O.DR.K.P.V.NARAYANAN, AGED 44 YEARS, NO OCCUPATION, RESIDING AT DEEPAM NEAR TOWN HALL, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENTS: ------------- 1. CHATHOTH MALINI, D/O.KRISHNAN, AGED 51 YEARS, TEACHER, RESISIDNG AT THULASI, KANNUR AMSOM, TALAP DESOM, TEMPLE ROAD, TALAP, KANNUR 2 KANNUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.RAMAKUMAR (SR.) FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-8-2008, THE COURT ON 05/09/2008 PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.13021/05 IN CRL.M.C. NO.3373/2005 DISMISSED. 5-9-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.M.C. No.3373 of 2005 ---------------------------------------------Dated 5th September,2008. ## ORDER Petitioners are the accused in C.C.No.178/2004, a case instituted upon a private complaint filed by the Ist respondent in the Judicial First Class Magistrate Court, Kuthuparamba. In this petition filed under Section 482 Cr.P.C., the prayer is to quash Annexure A complaint and C.C. 178/2004 instituted thereon. 2. The case of the Petitioners in brief is as follows: The first respondent/complainant is the sister of the 2[nd] petitioner/ 2[nd] accused. First petitioner is the husband of the 2[nd] petitioner and he is also the Ist accused in the complaint. According to the Petitioners, it is alleged in the complaint that the complainant's father acquired the property in question in the name of the 2[nd] petitioner/2[nd] accused as there was no permission for her father to acquire private landed property. Father of the 2[nd] petitioner has constructed a building in that property and Crl.M.C.3373/05. ## **-:2:-** he was running a Hindi School thereon. Subsequently, the father filed a suit against the 2[nd] petitioner as O.S.636/98 before the Munsiff's Court, Kuthuparamba, in which the complainant/first respondent was also arrayed as one of the defendants, for declaration of title and injunction and the said suit was dismissed on merits on 30-3-2004. In the complaint, the Ist respondent/complainant claimed that she has been looking after the affairs of the father as he is aged. In the complaint, it is the case of the Ist respondent that after the dismissal of the suit, the Petitioners/accused have been attempting to sell the property after stopping the functioning of the school in the property. According to the Ist respondent/complainant, the petitioners/accused have no legal possession over the property and it is still with her father. The allegation in the complaint is that on 14-4-2004, at about 7.30 p.m., the accused, along with some workers, trespassed into the building and took away the furnitures and thereby caused a total loss to the tune of Rs.50,000/- and thereby committed criminal trespass and theft. It is also Crl.M.C.3373/05. ## **-:3:-** alleged in the complaint that since police did not take action, she is constrained to file private complaint. Annexure A is the complaint, on the basis of which the court below took cognizance against the petitioners for the offences punishable under sections 457 and 380 read with Section 34 of IPC. Along with the petition, they have produced Annexure B summons issued to them from the court. According to the petitioners, in the complaint, it is also mentioned about the dismissal of the civil suit, but the court below did not consider the judgment of the civil court before issuing process. According to the Petitioners, the sum and substance of the criminal complaint is that the property with respect to which the alleged offence committed is a benami property of her father and though such a case was set up in the civil court, the same was rejected by the civil court based upon materials and evidence. Annexure C is the decree dated 30-3-2004 in O.S.636/98. Therefore, According to the petitioners, no offence is made out against them in Annexure A complaint and the prosecution itself is bad in law and Crl.M.C.3373/05. ## **-:4:-** abuse of process of court. Therefore, Annexure A complaint and the case instituted thereon are liable to be quashed and, as they have no other remedy to get quashed all the proceedings, they invoked the inherent powers of this Court under section 482 of Cr.P.C. 3. I have heard the counsel for the petitioners Sri R.Surendran; the Senior Counsel Sri K.Ramakumar for the Ist respondent and also learned Public Prosecutor. 4. Reiterating the contentions raised in the above Crl.M.C., the learned counsel for the Petitioners submitted that even if the entire allegations are taken as uncontroverted, no offence will lie against the petitioners. He invited my attention to Section 4(1) of the Benami Transactions (Prohibition) Act 1988 which says that no suit, claim or action to enforce any right in respect of any property held Benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. So according to the counsel, Annexure A complaint, ## Crl.M.C.3373/05. ## **-:5:-** preferred by the Ist respondent will amount to an action, with respect to the Benami property against the 2[nd] petitioner or her husband and the same is prohibited in view of section 4(1) of the above Act. According to the counsel, the learned Magistrate miserably failed to consider the scope and application of the above provision of law during the enquiry conducted before taking cognizance against the petitioner and issuing summons. The learned counsel strenuously argued that the only intention of the Ist respondent is to harass the Ist petitioner who is a man of good reputation in the society as a Physician and also the 2[nd] petitioner. Thus the learned counsel submitted that the court below has committed a wrong in taking cognizance upon a frivolous and vexatious complaint and therefore, Annexure A complaint and the case instituted thereon are liable to be quashed. 5. Denying the contentions taken in the above Crl.M.C. and resisting the arguments advanced by the counsel for the petitioners, the learned Senior Counsel Sri Crl.M.C.3373/05. ## **-:6:-** K.Ramakumar submitted that no interference of this court under section 482 of Cr.P.C. is called for since a reading of Annexure A complaint would show that the allegations raised therein are sufficient to constitute the offences against the petitioners/accused. The counsel submitted that simply because the suit was dismissed in favour of the 2[nd] petitioner, no right is conferred on her or her husband, the first petitioner herein. It is also the case of the senior counsel Sri K.Ramakumar that Annexure C decree has not attained finality as the appellate remedy is still open to the aggrieved party. It is further submitted that simply because the suit was dismissed, no right is conferred upon the Petitioners to trespass into the property in question and to remove the articles from there. Quoting the statements contained in Annexure A complaint and Annexure C decree, the learned counsel submitted that the property is still in the possession of the father and therefore, the trespass into such property attract the offence under section 457 of IPC. It is also pointed out by the learned counsel that the movables Crl.M.C.3373/05. ## **-:7:-** mentioned in the complaint, which altogether fetch the value of Rs.50,000/-, were belonged to the father and the same were removed without his consent or knowledge and therefore, Section 380 is also attracted against the petitioners/accused. According to the counsel, the court below has taken cognizance after considering the entire allegations in the complaint and also on the basis of the enquiry conducted through advocate. Thus according to the learned counsel, this Crl.M.C. is only to be dismissed. 6. I have carefully considered the rival contentions advanced by both the counsels and also perused the materials available on records. The learned counsel for the petitioners made available to me the certified copy of the records of the court below connected with the enquiry conducted by the Advocate at the instance of the court. 7. It is the case of the petitioners and their counsel that in view of Section 4(1) of the Act, the Ist respondent is debarred from filing criminal complaint. According to me, prima facie, the above provision is not attracted and not Crl.M.C.3373/05. ## **-:8:-** available to the petitioners herein, because, here, the main allegation is with respect to the movables which are owned by the father and were kept in the building in the property in question. The question whether the word 'action' contained in Section 4(1) of the Act would include a “prosecution” or “a complaint” is another question to be examined in detail and separately. For the disposal of this petition, I am of the opinion that this court need not enter into such enquiry. 8. It is the case of the counsel for the petitioners that even if the entire allegations are admitted as true, no offence will lie against the petitioners, in the given facts and circumstances of the case. According to the learned counsel, there is no material or allegation to show that the alleged removal of articles was done with “dishonest intention”. Unless it is specifically pleaded and supported by materials, it cannot be said that the ingredients of Sections 379 and 380 are attracted. In support of the above contention, the learned counsel very much placed reliance upon the decision of this Court in **Kesavan Nair v. State of Kerala** (2005(3) KLT Crl.M.C.3373/05. ## **-:9:-** 391). I have carefully considered the facts and circumstances involved in the above case. In the above case, as disclosed from para 9 of the said decision that “in the charge sheet itself it is stated that the accused had removed the movables with the intention to evict the complainant”. Therefore, in the said case, the definite case of the prosecution is that the movables were removed with the intention to evict the complainant. It is also discernible from the same paragraph of the decision that in the complaint it is specifically stated that the accused had threatened the complainant therein that his articles will be removed in case he did not vacate the premises. It is also disclosed from the decision that the movables which removed were kept exposed and intact in the premises of the house of the accused. So on the basis of that particular facts involved in that case, this Court has held that there was no “dishonest intention” for the accused to commit the offence of theft. But in the present case, the factual situation is entirely different. Here, the allegation is that Crl.M.C.3373/05. ## **-:10:-** after having trespassed into the property, the movables were removed. Therefore, the above decision is not helpful for the petitioners to substantiate their contention. 9. It is the case of the counsel for the petitioners that Annexure A complaint was filed on the failure of the Ist respondent on her attempt to get the property through her father by filing a civil suit. Hence it is argued that if the first respondent is aggrieved by the judgment and decree in the civil suit, her remedy lies elsewhere and not to invoke criminal proceedings. It is submitted that the intention behind the filing of the complaint was to deter the petitioners/accused from taking any step towards the sale of the property till filing appeal before the civil court after its reopening. Hence, according to the counsel for the petitioners, the complaint is filed on experimental basis and that itself shows its vexatious nature. 10. The learned Senior counsel Mr. K.Ramakumar took me through Annexure A complaint, especially, 2[nd] paragraph in the 4[th] page of the complaint and submitted that Crl.M.C.3373/05. ## **-:11:-** those averments are sufficient to constitute the essential ingredients of Sections 454, 379 and 380 of IPC. The counsel further submitted that the sufficiency of evidence or materials need not be examined in a proceedings under section 482 of Cr.P.C. The learned Senior counsel Sri Ramakumar cited the following decisions of the Apex Court in **Renu Kumari v.Sanjay Kumar** (2008(1)KLD 726 )(SC); and **Sanapareddy Meheedhar v. State of Andhra Pradesh** (2008(2) KLT 29 (C.No.36)(SC). After discussing the scope of Section 482 Cr.P.C. the Apex Court in **Renu Kumari's case (2008(1)KLD 726 )(SC)** (cited supra) held that inherent power should not be exercised to stifle a legitimate prosecution and a decision under section 482 Cr.P.C. has to be based on sound principles. In the very same decision, the Apex Court has held that when exercising jurisdiction under section 482 Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained. In **Sanapareddy** Crl.M.C.3373/05. ## **-:12:-** ## **Maheedhar's Case (2008 2 KLT SN 29(C.36)(SC) (cited** **supra),** the Apex Court discussed about the parameters for exercise of power under Section 482 Cr.P.C. to quash the proceedings and identified 7 cases in which FIR or complaint can be quashed. On the basis of those decisions Senior counsel Sri K.Ramakumar submitted that since the allegations prima disclosed the alleged offences, this court need not examine the sufficiency of evidence and the settled legal position reiterated the limited scope under section 482 of Cr.P.C. Relying on the decision of this Court in ## **Ramakrishna Sharma v. Inspector of Plantations** (2008 (1) KLT SN 37 (C.No.40), the learned counsel submitted that this Court will not be justified in looking into Anneuxre C document produced by the petitioners. In the said decision, this Court has held that in a proceedings under Section 482 Cr.P.C., the High Court is not expected to admit and act upon the documents produced by the defence which are not relied on and produced by the prosecution, for quashing the proceedings. As the facts involved in the present case is Crl.M.C.3373/05. ## **-:13:-** entirely different from the case cited supra, that decision is not applicable. There, the court has further held that the court has to confine only to the documents relied on by the prosecution, since in that case, the accused produced certain documents which are not at all relied on or referred by the prosecution. But in the present case, even going by Annexure A complaint, it can be seen that the complainant had referred to the judgment and decree in O.S.No.636/98 and all averments are based upon such decree and judgment. Therefore, it cannot be said that Annexure C is a totally strange document to the complainant and the petitioners are trying to bring out some new facts which are outside the scope of the case of the complainant. However, for the disposal of this petition, this Court is not proposed to enter into a finding whether any offence is constituted or not on the basis of Annexure C document. Therefore, the above decision and contention based thereupon are not relevant. 11. Regarding the legal position reiterated by the Supreme Court through the decisions mentioned above, Crl.M.C.3373/05. ## **-:14:-** there is no doubt at all. But when the facts and circumstances involved in this case is examined in the light of the above guidelines formulated by the Apex court and to see whether this Court should exercise its jurisdiction under section 482 of Cr.P.C., on such application of the above guidelines in the present case, the points raised by the counsel for the petitioners become relevant. Counsel for the petitioners pointed out that going by the complaint, major portion of the same is covered with respect to the claim and right of the Ist respondent and her father connected with the property in question. As the Ist respondent is very much concerned with such property right, she had just chosen to file criminal complaint and the same is filed with ulterior motive. In the light of the above submission, I am persuaded to peruse the complaint repeatedly. On such reading, it is seen that in the second paragraph in page 3 of Annexure A complaint, it is stated that in order to file appeal against the decree and judgment in O.S.636/98, application has already been filed for certified copy. It is also stated in Crl.M.C.3373/05. ## **-:15:-** page 3 of Annexure A complaint that after the decree in O.S. 636/98 the civil courts were on vacation and the accused were obstructing the running of the Hindi Vidyalaya and the accused were trying to sell the property and the house thereon after closing down the Hindi Vidyalaya, before the reopening of the court after vacation. The above passages contained in the complaint has to be examined in the factual background which led to the filing of the complaint. Admittedly, the Ist respondent and the 2[nd] petitioner herein are the daughters of the Ist plaintiff in O.S.636/98. If the Plaintiffs had succeeded in the suit, naturally, the Ist respondent will get substantial right over the property. The said interest is explicit from the words and averments quoted from the complaint. The same is also discernible from the apprehension of the Ist respondent regarding the attempt made by the petitioners for the disposal of the property before the vacation of the civil court. It is also gatherable the intention of the Ist respondent to file an appeal before the civil court on its reopening for which Crl.M.C.3373/05. ## **-:16:-** arrangements were made to obtain the certified copy of the judgment and decree. The Ist respondent very much anxious and apprehends that the property would likely to dispose of before the reopening of the civil court unless and until certain steps are taken in this regard. In the above circumstances, it appears that, Ist respondent had chosen to approach the criminal court on experimental basis and by filing a vexatious complaint. In short, the filing of the criminal complaint taken as a short cut to redress the grievance of the Ist respondent that arose out of the judgment and decree in O.S.636/98. I am of the view that the criminal jurisdiction of the court cannot be invoked even for a limited purpose as a short cut to redress the grievance arose out of civil dispute. I am forced to arrive on such observation on the basis of the decision of the Apex Court in **G.Sagar Suri v. State of U.P.** {(2000) 2 SCC 636}. In the above decision, it is held in paragraph 8 as follows: **“8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the** Crl.M.C.3373/05. ## **-:17:-** **matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice”. (emphasis supplied)** In the light of the above decision, it can be seen that the present attempt of the Ist respondent by filing Annexure A complaint itself is a short gap arrangement till the filing of the civil appeal or to prevent the petitioners enjoying the right over the property as evidenced by Annexure C decree and thereby the criminal proceedings used as a short cut of other remedies available in law. 12. Frivolous nature of the complaint is further revealed from the hurry-burry shown in filing Annexure A complaint. Going by Annexure A complaint, it can be seen that the Ist Crl.M.C.3373/05. **-:18:-** respondent had preferred the complaint because of the age and illness of her father, the Ist plaintiff in the above suit, and the complaint was filed at the instance of her father. It is also stated that the power of attorney will be produced for the same. From the above it is crystal clear that at the time of filing of the complaint and taking cognizance, the Ist respondent was not the real complainant and she was not having any concern over the same except her ipse dixit in Annexure A complaint. Of course, any person can bring the law into motion. No reason is given for not filing the complaint as her own volition. The above facts further shows the frivolous nature of the complaint. The intention behind the filing of the complaint in such a hasty manner is to prevent the petitioner from enjoying their right over the property in question, especially, on the basis of the judgment and decree in O.S.636/98. From the above facts and circumstances, the mala fide intention behind the filing of the complaint is more obvious. In this juncture, it is apposite to note that in Annexure A complaint, only the petitioners are Crl.M.C.3373/05. ## **-:19:-** shown as accused. According to the complaint, the articles were removed with the help of two others. If the alleged offences are true, the said persons should also have been implicated as accused, since the allegation raised is trespass and theft, and for commission of such offences, the role of the other persons can be brought either with the aid of section 34 or section 120B of IPC. But there is no such allegations or averments and they were not arrayed as accused. It is also relevant to note the submission of the counsel for the petitioners that the alleged offence took place at 7.30 p.m. on 14-4-2004 which according to the Ist respondent witnessed by certain other persons. According to the counsel, if the articles were intended to remove stealthily, no prudent man will hold that the accused will choose the time as 7.30 p.m. on the date of occurrence for the removal of the articles. In this proceedings, this Court is not expected to embark upon the enquiry as to whether the allegation would sustain based upon the evidence. The above facts also reveal that the complaint is a frivolous and Crl.M.C.3373/05. ## **-:20:-** vexatious one which is filed to harass the petitioners. In the decision relied on by the learned Senior Counsel for the Ist respondent, viz., **Sanapareddy Maheedhar v. State of Andhra Pradesh** (2008(2) KLT SN 29 (C.No.36 (SC) (cited supra), the Supreme Court has held as one of the parameters for exercise of power of High Court under section 482 Cr.P.C. to quash proceedings in the following words, that **“where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge”** . From the foregoing reasoning it is also clear that the Ist respondent has the intention to spite the petitioners and to harass them. In the light of the above discussion, I am of he view that the above guideline is squarely applicable in the present case and the consequence follows is that the complaint be quashed. 13. In the light of the above discussion, and in view of the settled position of law referred above, and on the basis Crl.M.C.3373/05. ## **-:21:-** of the particular facts and circumstances involved in this case, I am of the opinion that Annexure A complaint is frivolous and vexatious in nature and filed with mala fide intention and the continuation of the same will amount to abuse of process of court. In the result, this Cl M.C. is allowed. Annexure A complaint and C.C.178/2004 instituted thereon and pending before the Judicial First Class Magistrate, Kuthuparamba are quashed. There will be no order as to costs. ## **V.K.MOHANAN, JUDGE** kvm/- Crl.M.C.3373/05. ## **-:22:-** V.K.MOHANAN, J. No.... Judgment/Order Dated: