G. Gopakumar v. State of Kerala and Marykutty T. P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942** ## **Crl.MC.No.7910 OF 2018(G)** **AGAINST THE ORDER/JUDGMENT IN CC 6/2018 OF CHIEF JUDICIAL MAGISTRATE ,KOTTAYAM** **CRIME NO.696/2014 OF Kottayam East Police Station , Kottayam** ## **PETITIONER/ACCUSED:** **G. GOPAKUMAR AGED 51 YEARS S/O PARAMESWARAN PILLAI, GAYATHRI MADOM, THIRUVARPP P.O., KOTTAYAM DISTRICT, PIN 686 033.** **BY ADVS.** **SRI.JOSEPH GEORGE SRI.BIJO THOMAS GEORGE SMT.NICEY A.MENON SRI.P.A.REJIMON** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTTAYAM EAST POLICE STATION, KOTTAYAM DISTRICT, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 MARYKUTTY.T.P AGED 45 YEARS D/O.LATE YOHANNAN,THURUTHIYIL HOUSE, ERAMALLOOR KARA,ERAVINALLOOR.P.O, PUTHUPALLY VILLAGE, KOTTAYAM DISTRICT,PIN-686011.** **BY ADV.** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.7910 OF 2018(G)** **2** ## **ALEXANDER THOMAS, J. -----------------------------------Crl.M.C. No.7910 of 2018** ## **-----------------------------------Dated this the 17[th] day of November, 2020** ## **ORDER** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Cr.P.C. is as follows: _“…..to pass an order quashing the entire proceedings in C.C 6/2018 on the file of the Hon’ble Chief Judicial Magistrate Court Kottayam by acquitting the petitioner/accused.”_ 2. Heard Sri.Joseph George, learned counsel appearing for the petitioner (sole accused), Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1-State of Kerala. Though notice to contesting respondent No.2 (lady de facto complainant) has been duly served, as can been seen from the endorsement made by the Registry on 02.11.2020, the said party has not entered appearance before this Court, though the case has been adjourned on more than one occasion to enable her to enter appearance in the meanwhile. 3. The petitioner has been initially arrayed as the sole accused in the impugned Annexure A2 FIR in the Crime No.696 of 2014 of Kottayam East Police Station, which has been registered for offences punishable under Sections 406 and 420 of the IPC and Sections 13 and **Crl.MC.No.7910 OF 2018(G)** **3** 17 of the Kerala Money Lenders Act, 1958 on the basis of Annexure A1 petition given by her on 26.06.2014 to the Inspector General of Police, Ernakulam Range. The Police after investigation has filed Annexure A3 refer report on 11.11.2014 holding that the allegations made by the 2nd respondent-lady de facto complainant are civil in nature and that the allegations are incorrect, etc. Thereupon the 2[nd] respondent has filed Annexure A4 protest complaint on 30.04.2015 before the Chief Judicial Magistrate Court, Kottayam, in which the learned Magistrate, after taking Annexure A5 sworn statement dated 18.11.2016 of the 2[nd] respondent herein (complainant), has taken cognizance of the offence alleged in the said protest complaint and has issued summons to the petitioner as per impugned Annexure A6. It is this proceedings at Annexure A4, A5 and A6 that are under challenge in this Crl MC. 4. Brief of the allegations initially raised by the 2[nd] respondent in Annexure A1 and A2 are as follows:- The 2[nd] respondent has filed Annexure A1 petition dated 26.06.2014 before the Inspector General of Police, Ernakulam Range, by alleging that she has borrowed of an amount of Rs.85,000/- by handing over the title deed of the property in which the residential house is situated and the title deed of the adjacent land and that petitioner threatened **Crl.MC.No.7910 OF 2018(G)** **4** her due to nonpayment of interest and lastly she had paid a huge amount of Rs.2,50,000/- to the petitioner through her relative but that, the properties were not reconveyed to her even after 1 ½ months and that the petitioner insisted for payment by the 2[nd] respondent and returned an amount of Rs.2,50,000/- to the relative of the 2[nd] respondent and thereafter the 2[nd] respondent had paid an amount of Rs.2,00,000/- and subsequently paid an amount of Rs.1,20,000/- but the petitioner has cheated her by not reconveying the property even after she has allegedly fulfilled more than the debt amounts owed by her to him, etc. The relevant allegations contained in Annexure A1 on page 9 and 10 of the paper book of this petition reads as follows:- "എന� പ�ത�വ�ന� ഭമ�ക� ഏക അവക�ശ�യ�യ എന� വ�ട� സലവ� കഷ�ഭമ�യ� 85,000/- രപക� പണയ� വ�ങ�യ ശശഷ� മതല� പല�ശയ� **3,70,000/-** പല�ശയപല�ശയമ�യ� രപ ത�ര�നക നക�ടത�ട� ഭമ� ത�ര�നക നൽക�നത എശ)യ� എന� രണ കകകഞങന.യ� എന� പ�ത�വ�ന� മരണശശഷ� ഒമത�� ദ�വസ� വ�ട�ൽ ന�ന� അന�ഥര�ക� ഇയ�ള� ഗണകള� ശ:ർ)� ഇറക�വ�ടത�ന�ൽ ഞ�ൻ . ഇ)� ശക�ടയ� നമഡ�കൽ ശക�ശ.ജ� വര�നയ�ൽ ഭയന വ�റച� കഴ�യ)ത സ�ബന�ച� ## സർ, . ഞ�ന�ര ഹJശK�ഗ�യ�ണ� എന� :�ക�തയനN ആവശJത�ന�യ� പണ� ആവശJ�വ)ശP�ൾ ശക�ടയതപവർത�ക) പണമ�Nപ�N� സ�പനനത പറ� എട�� കമൽ സUശദശ� പ�കപറമ�ൽ സ��ശമ�ൻ മഖ�ന�ര� അ�ബര�ൻ ബ�ൽഡ��ഗ�ൽ പവർത�ച�ര) ജ� 4 ശപ�Pർട� എ) സ�പന� നNത�പക�രന�യ ഗ�യത�മഠത�ൽ ശഗ�പകമ�ർ എ) വJക�ക� ഞങൾ ത�മസ�ച�ര) വ�N�ശ�യ� കഷ�ഭമ�യശNയ� ആധ�ര� ഈട നൽക� **85,000** രപ കN� വ�ങ�യ�രന. പല�ശ മങ�യത�ന�ൽ . ഇയ�ൾ ഗണകളമ�യ� വ�ട�ൽ വ)� ബഹ.� വയമ�യ�രന ഒടവ�ൽ ഇയ�ളനN ഭ�ഷണ� ഭയ)� ഇയ�ൽ മതല�, പല�ശയ� പ�ഴ പല�ശയമ�യ� പറഞ�ര) 2,50000/- രപ . എന� ഒര ബന മഖ�ന�ര� നക�ടത ഒ)ര മ�സ� കഴ�ഞ�ട� സല� ത�ര�നക തര�നത വ)ശP�ൾ ഞ�ൻ ഇയ�ളനN ഓഫ�സ�ൽ ന:)� ഇയ�ന. കണ. ആനരങ�ല� പണ� ത)�ൽ സല� ത�ര�നക നൽക�ല�നയന� സല� ശവണനമങ�ൽ ന� തന) പണവമ�യ� **Crl.MC.No.7910 OF 2018(G)** **5** വര�ന� പറഞ. അശP�ൾ ഞ�ൻ ബന നക�ടത പണ� ബനതന) പല പ�വശJ� ആവശJനPടശP�ൾ ന�ങൾ പണ� ത)ത�ന നത.�വ�നലന� എങ�ല� ഞ�ൻ ത�ര�നക തരകയ�നണന� പറഞ ബന ബഹ.� വചശP�ൾ ത�ര�നക വ�ങ�. തNർ)� 2,50000/. രപ ഞ�ൻ ശനര�ട� ഇയ�ൾക� നക�ടത എങ�ല� എന�ക� ഓഫ�സ�ൽ ശകസ�ന� പല ത�രകനണന� അതനക�ണ� പ�ന) എന�യ� കN� സമയ� ഉളശP�ൾ ന�ങന. വ�.�ച� സല� ത�ര�നക എഴത� നൽക�നമന� പറഞ. എ)�ൽ വ�ണ� ഇയ�ൾ ആധ�ര� ത�ര�നക . എഴത� തര�നത വ)ശP�ൾ ഞ�ൻ വ�ണ� ഇയ�ളനN ഓഫ�സ�ൽ എത� അശP�ൾ വ�ണ� പല�ശ കN�നയന� അത�ശലക�യ� 1,20000/- രപ� കN� ത)�ൽ സല� ത�ര�നക നൽക��ന� പറഞ. അത� നൽക�. തNർ)� അവ�നN ന�ന� ത�ര�നക ശപ�ന. പ�)�N� . എന� അചൻ മര�ച ഒമത�� ദ�വസ� പ�ർതന കഴ�ഞ� എല�വര� ത�ര�നക ശപ�യശശഷ� ഇയ�ശ.�നN�P� വ) മനറ�രഡUശകറ� ഷ�പ ശക�ൺട�കർന പറഞ� ശഗ�പകമ�ർ പര�:യനPടത�യ കറത വണമളയള� ആ വ�ഹനത�ൽ വ) മറ� ഗണകള� ശ:ർ)� എന) വ�ട�ൽ ന�)� ഇറക� വ�ട. ന�ടക�ർക ശപ�ല� തNസ� പ�N�ക�ൻ കഴ�യ�ത�ര)ത� ഇയ�ൾ വക�ല�നണ)� അവ�നNനയല�� പറഞ പരത�യ�ര)ത നക�ണ�ണ� അചന� മരണശത�നN വ�ട� നഷനPട� ഹJശK�ഗ�യ�യത�ന�ൽ ഭർത�വ�ന�ല� ഉശപക�കനPട� അന�ഥമ�കനPട ഞങൾ ശക�ടയ� നമഡ�കൽ ശക�ശ.ജ� വര�നയ�ല�ണ� ത�മസ�. കശറ ദ�വസങൾകശശഷ� പലപ�വശJ� ഓഫ�സ�ൽ ന:)ശP�ൾ ഒര�കൽ ഇയ�ന. കണ. ഞ�ൻ സല� ആവശJനPട� കരഞ പറഞ�ട� ഫല� ഉണ�യ�ല. ഞ�ൻ മരണനPട�ൽ എന� മകൾക� ആരമ�ല�നയന� അവർ എശങ�ട� ശപ�കനമന� ശ:�ദ�ചശP�ൾ ന� മകന. സ�യ�ബ�ബയനN ആശമത�ല�ക�യ�ട� എന� കനN വര�ന� ഈ കട�ക.�ൽ ഒന� എശ�തലശല�നയന� പറഞ. ഞ�ൻ പര�ത� നക�ടകനമ)� പറഞശP�ൾ ന�ന� അPൻ ഒP�ടത)ധ�ര�.� മKപതങള� ശപPറകള� എന� കകയ�ൽഉനണന� ഞ�ൻ വക�ല�നണന� ന�ന) ശക�Nത�ശകറനമന� പറഞ. സല� നഷനPട� ഞ�ൻ വ�ണ� നമഡ�കൽ ശക�ശ.ജ�ശലക ശപ�ന. ഇയ�.�ൽ അന�ഥമ�കനPട എന�ക� കഞങൾക� ന�ത� ലഭ�ക)ത�ന� ഞങളനN വസവകകൾ വ�നണടതതരവ�ൻ ശവണനNപN�കൾഅങയനN ഭ�ഗതന�)�ഉണ�കണനമ)�ത�ഴയ�യ� അശപക�കന. വ�ശUസതശയ�നN ഒP� .പ� ശമര�കട� റ� സല�. എരമലർ ത�യത� 26.6.2014” 5. Further, on receipt on Annexure A1 petition the Kottayam East Police Station has registered Annexure A2 FIR in crime No.696 of 2014 alleging commission of offences punishable under Sections 406 and 420 of the IPC and Sections 13 and 17 of the Kerala Money **Crl.MC.No.7910 OF 2018(G)** **6** Lenders Act. Annexure A2 FIR was registered on the basis of directions given by the Inspector General of Police, Eranakulam Range. The allegations in Annexure A2 is to the effect that the petitioner/accused has given an amount of Rs.85,000/- as loan with interest to the 2[nd] respondent-de facto complainant who was then constrained to execute sale deeds in respect of her residential property and paddy land property in favour of the petitioner and thereafter though the 2[nd] respondent has repaid a total amount of Rs.3,70,000/-, the petitioner/accused has cheated her by not executing sale deeds in her favour and has ousted her from the residential house. The relevant portion of Annexure A2 on page 13 of this paper book which reads as follows:- "...ക� പണ� അമ�ത പല�ശക�നക�ടത� അമ�ത�ദ�യ� ഉണ�കണനമനള ഉശദശശത�ടകN� ന�യമ�നസരണമള കലസൻശസ� മറ� അധ�ക�രപതങശ.� ഇല�നത ആവല�ത�ക�ര�ക� 85,000/- രപ� :�ക�ത�വശJത�ന�യ� പല�ശയ� നക�ടകകയ� ആയത�ന� ഈN�യ� ആവല�ത�ക�ര�യനN വ�ട� പരയ�Nവ� എഴത�വ�ങകയ� N� പണ� ത�ര�നക നൽകശമ�ൾ N� വ�ട� പരയ�Nവ� ആവല�ത�ക�ര�ക�എഴത� നൽകണ� എ)വJവസന:യ�പത� വ�ങ�നയടതശശഷ� ആവല�ത�ക�ര�യനN കകയ�ൽ ന�ന� N� 85,000/- രപയ� പല�ശയ� ഉൾനPനN 3,70,000/- രപ പത� വ�ങ�നയടതശശഷ� പറഞ�വ�ശUസ�P�ചത�ൻ പക�ര� N� വ�ട� പരയ�Nവ� ത�ര�നകനൽക�നതയ� N� ആവല�ത�ക�ര�നയയ� കട�കന.യ� N� വ�ട�ൽ ന�ന� ആശകപ�ച� ഇറക� വ�ട� വ�ട� പരയ�Nവ� പത� കകവശനPടത�നയടത� ആവല�ത�ക�ര�നയ വ�ശU�സവഞന നNത� :ത� ന:യ എനളത�.” 6. Later the Police after investigation has submitted Annexure A3 final report/charge sheet on 11.11.2014 by referring the cases as civil **Crl.MC.No.7910 OF 2018(G)** **7** dispute and factually incorrect. The materials would show that the Police has recorded the statement of the 2[nd] respondent and five other persons including the accused. The Police have also very meticulously verified the materials and properties in question from the office of the Village Officer, Puthuppally and the Sub Registrar’s Office, Puthuppally. After completion of the enquiry the Police have come to the considered conclusion that the case is of civil nature and that no offence has been disclosed against the petitioner. In that regard, a bare reading of the last paragraph and top portion on the internal page Nos.6 and 7 of Annexure A3 final report would show that the Police could meticulously collect materials to show that as a matter of fact, none other than the father of the 2[nd] respondent has executed two registered sale deeds on 22.11.2016 in favour of the petitioner conveying the subject property in question. That after the execution of the two sale deeds on 22.11.2016 the subject property has been fully mutated in the name of the petitioner. Thereafter, the petitioner has executed a registered sale deed on 30.10.2018 conveying one among the two items of the property to a third person. Moreover, it appears that one of the witnesses in the sale deeds executed in favour of the petitioner by the father of the 2[nd] respondent is none other than the 2[nd] respondent-lady de facto complainant. These aspects of the matter are **Crl.MC.No.7910 OF 2018(G)** **8** all the more clear from paragraph No.3 on internal page No.6 of Annexure A3 refer report. Therefore, the version of the 2[nd] respondent as if she had handed over title deeds of the property to the petitioner for the loan transaction in question, etc,. appears to be only untrue inasmuch as the properties which are claimed to be that of the 2[nd] respondent, belong to none other than her father, who in turn has executed registered sale deeds in favour of the petitioner on 22.11.2006, etc. and one of the witnesses to the said registered sale deed transaction is none other than the 2[nd] respondent. 7. Later, the 2[nd] respondent has filed Annexure A4 protest complaint on 30.04.2015, wherein the allegations are to the effect that she has requested the accused to arrange Rs.85,000/- as loan and the accused had insisted for executing sale deed pertaining to the properties including residential house and promised to reconvey the properties on repaying the loan amount. That believing the version of the accused the de facto complainant and her father registered the sale deed prepared by the accused and received Rs.85,000/- by preparing to pay interest. Thereafter, the petitioner has cheated the de facto complainant by not reconveying the properties even after receiving Rs.3,70,000/- towards the repayment of the loan amount interest. A **Crl.MC.No.7910 OF 2018(G)** **9** reading of Annexure A4 complaint would show that there is a drastic improvement in that version by alleging that a sale deed has been jointly executed by the 2[nd] respondent and her father in favour of the petitioner. The earlier story of the handing over of the title deeds is now given a go by and presumably in view of the findings by the Police in Annexure A3 refer report about the execution of the registered sale deeds by none other than the 2[nd] respondent’s father in which she is a witness, etc., the new version is that sale deed was executed in favour of the petitioner by both the 2[nd] respondent and her father. Otherwise the main story is regarding a borrowed amount of Rs.85,000/- and demanding of huge amount and not reconveying the property in spite of receipt of a high amount of Rs.3,70,000/- from the 2[nd] respondent. Very surprisingly, while giving sworn statement at Annexure A5 on Annexure A4 complaint, the 2[nd] respondent has made yet another dramatic improvement by alleging that two title deeds of the two items of property were kept in a single cover and that she had handed over such a single cover containing two title deeds to the petitioner and that she had obtained Rs.85,000/- as loan from the petitioner with the promise that he would reconvey the property after she discharges the loan liability, etc. **Crl.MC.No.7910 OF 2018(G)** **10** 8. After going through the materials in this case it can be seen that the 2[nd] respondent has been changing the version from time to time. The basic story put forward by her in Annexure A1 is also slightly improved during the registration of Annexure A2 crime. The entire story put forward by her has been the subject matter of a very meticulous investigation by the Police so found that the allegations disclose only civil disputes and that the basic allegations regarding handing over of the title deeds, etc., are untrue inasmuch as what was involved was execution of registered sale deed not by the de facto complainant, but by her father in favour of the petitioner in which she has been a witness thereof. The Police after meticulous investigation has filed Annexure A3 refer report referring the case as one of civil dispute and factually incorrect. This Court has held in various decisions as in _**Parameswaran Nair v. Surendran**_ [2009 (1) KLT 794], that a protest complaint would lie only if there was manifest error or manifest miscarriage of justice in the earlier order or new facts if the complainant has no knowledge despite diligence in the previous proceedings is adduced etc. It would be profitable to refer to paragraph No.12 of the _**Parameswaran Nair v. Surendran**_ [2009 (1) KLT 794], which reads as follows: **Crl.MC.No.7910 OF 2018(G)** **11** _“12. If the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be treated as a second complaint. If so, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is adduced. When this is the legal position, it is not lawful to the Magistrate to ignore the final report submitted by the police under S.173(2) of the Code. Magistrate is bound to consider the final report and decide which of the options available to him is to be exercised.”_ In the instant case the 2[nd] respondent cannot be even remotely contend that some of the new versions projected by her in Annexure A4, which itself varies in some manner from the one given in Annexure A5 sworn statement, were not within her knowledge at the time of institution of Annexure A1 and Annexure A2 proceedings or that she could not have narrated those factual aspects in spite of due diligence, etc. The version and story of the 2[nd] respondent have been changed from time to time as noted hereinabove. The learned Magistrate has committed egregious error in having taken cognizance of the protest complaint and having issued summons to the petitioner thereon, as the same is in patent violation of dictum laid down by this Court in a catena of rulings as the one in _**Parameswaran Nair v. Surendran**_ [2009 (1) KLT 794], mentioned hereinabove. It cannot be contended even for a minute that in this case there are manifest miscarriage of justice in the earlier refer report as per Annexure A3 refer report or that new facts which the **Crl.MC.No.7910 OF 2018(G)** **12** complainant would not have brought forward in the previous proceedings which is now adduced in the protest complaint proceedings. Therefore, it was highly illegal and improper on the part of the learned Magistrate to have taken cognizance of Annexure A4 protest complaint. 9. In that view of the matter, it is ordered that Annexure A4 protest complaint and all consequential proceedings taken in pursuance thereof including Annexure A6 summons which has led to the pendency of Calendar Case CC No.6 of 2018 on the file of the Chief Judicial Magistrate Court, Kottayam, as against the petitioner / accused will stand set aside and quashed. 10. The petitioner will produce certified copy of this order before the Chief Judicial Magistrate Court, Kottayam, who has dealt CC No.6 of 2018. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SCS **Crl.MC.No.7910 OF 2018(G)** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A-1** **CERTIFIED COPY OF COMPLAINT DATED 26-062014 FILED BY THE 2ND RESPONDENT.** **ANNEXURE A-2 CERTIFIED COPY OF FIRST INFORMATION REPORT IN CRIME NO.696/14 OF KOTTAYAM EAST POLICE STATION.** **ANNEXURE A-3 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.696/14 OF KOTTAYAM EAST POLICE STATION.** **ANNEXURE A-4 CERTIFIED COPY OF PROTEST COMPLAINT FILED IN CRIME 696/14 OF KOTTAYAM EAST POLICE STATION.** **ANNEXURE A-5 CERTIFIED COPY OF DEPOSITION OF THE COMPLAINANT IN CRIME 696/14 OF KOTTAYAM EAST POLICE STATION.** **ANNEXURE A-6 THE ORIGINAL OF SUMMONS RECEIVED BY THE PETITIONERS IN C.C 6/2018 OF CJM COURT,KOTTAYAM.** //TRUE COPY// PA TO JUDGE