## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN**
**MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934**
**Crl.MC.No. 4043 of 2011 ( ) --------------------------(MP NO.3424/2006 OF J.M.F.C., PERUMBAVOOR)**
**PETITIONER/IST ACCUSED:**
**------------------------**
**GOPINATHAN NAIR, S/O.SREEDHARAN PILLAI, VANDANANICKAL, SOUTH VAZHAKKULAM KARA VAZHAKKULAM VILLAGE, KUNNATHUNADU TALUK.**
**BY ADV. SRI.K.V.SADANANDA PRABHU**
**COUNTER PETITIONERS/DEFACTO COMPLAINANT AND STATE:**
**--------------------------------------------------**
**1. SUDHAKARA MENON, S/O.LAKSHMIKUTTY AMMA, ALAPATTU HOUSE, VAZHAKKULAM VILLAGE, KUNNATHUNADU TALUK, PIN-686670.**
**2. STATE REPRESENTED BY S.I.OF POLICE,**
- **THADIYITTA PARAMBU, PERUMBAVOOR, PIN-686670.**
**R1 - BY ADVS. SRI.T.RAJASEKHARAN NAIR SRI.BIJU P.THOMAS**
- **R2 - BY PUBLIC PROSECUTOR SRI. R. RANJITH**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SCL.**
## **Crl.MC.No. 4043 of 2011 ( )**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**ANNEXURE-A: ORDER OF THE JFMC PERUMBAVOOR IN M.P.3424/06 DT.19/6/2010 (LATER CC 542/10).**
**ANNEXURE-B: SUMMONS DT.11-4-11,ISSUED TO THE PETITIONER IN C.C.542/10,PURSANT TO ANNE.A ORDER.**
**ANNEXURE-C: PLAINT DT.24-2-06,IN O.S.103/07,SUB COURT,PERUMBAVOOR (ORIGINALLY O.S.83/06 PARAVOOR SUB COURT)BETWEEN PETITIONER AND IST RESPONDENT ALONG WITH ANOTHER.**
**ANNEXURE-D: COMPLAINT DT.17-3.06 FILED BY THE IST RESPONDENT BEFORE THE JFCM ,PERUMBAVOOR.**
**ANNEXURE-E: FINAL REPORT DT.20-2-06 FILED BY THE 2ND RESPONDENT BEFORE THE JFMC,PERUMBAVOOR.**
**ANNEXURE-F: PROTES COMPLAINT DT.22-8-06 FILD BY THE IST RESPONDENT AGAINST THE ANNE.E FINAL REPORT.**
## **RESPONDENTS' EXHIBITS: NIL**
// **TRUE COPY//**
**PA TO JUDGE**
**Scl.**
## **S.S.SATHEESACHANDRAN, J.**
**----------------------------------------------Crl.M.C.No.4043 of 2011 ----------------------------------------------Dated this the 25[th] day of June, 2012**
## **O R D E R**
Petitioner is the 1[st] accused in C.C.No.542/10 on the file of the Judicial Magistrate of the First Class, Perumbavoor. In the above case, he is prosecuted with another for the offence punishable under Section 420 read with Section 34 of the Indian Penal Code. That case arose on a complaint filed by the 1[st] respondent (hereinafter referred to as 'the complainant'} before the magistrate and such complaint referred to the police for investigation and report under Section 156(3) of the Code of Criminal Procedure {for short “the Code”}. Police after investigation filed a report that the case is of a civil nature and no
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offence is made out. Aggrieved by such report, the complainant filed a protest complaint in which after conducting enquiry, the magistrate took cognizance of the offence under Section 420 read with Section 34 of IPC against the two accused named. Cognizance taken was challenged by the petitioner before this court and the order of the magistrate was set aside directing him to reconsider the case taking note of the observations rendered by this court in Parameswaran Nair v. Surendran {2009(1) KLT 794}. The learned Magistrate on such remission, after hearing both sides and also looking into the materials tendered by the complainant has passed Annexure A order to proceed against the accused taking cognizance of the offence under Section 420 read with Section 34 of the IPC against them. That order is challenged invoking
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the inherent jurisdiction of this court under Section 482 of the Code.
2. I heard the counsel on both sides.
3. Prosecution of the accused filing the complaint for the offence referred to above has arisen from an agreement of sale over an immovable property executed by the accused persons in favour of the complainant. With dishonest intention and suppressing the liability existing over the property towards a loan availed from a co-operative bank, the accused induced the complainant with false promises, to enter into an agreement of sale, received part sale consideration and, later, collected further substantial sum towards the sale price, to clear off the debts with the bank, promising to execute the sale deed, but that was only honoured on its breach, and both the
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accused thereby committed cheating was the case of the complainant. The 2[nd] accused is the daughter of the 1[st] accused and she is stated to be the owner of the property which was covered by the agreement of sale. A civil suit has been filed for enforcement of such an agreement of sale and that has already been decreed in his favour, from which an appeal by the defendants is stated to be pending before this court.
4. The question that emerges for consideration is whether the essential ingredients to constitute an offence of cheating has been made out in the complaint filed before the magistrate, and if so, whether the materials tendered by the complainant after a refer report has been filed by the police conducting investigation of the crime registered that the disputes involved are only of a civil nature,
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justify cognizance taken by the Magistrate for the offence alleged against the accused persons.
Though the learned counsel for the petitioner/1[st] accused banked upon the refer report filed by the police after investigation, and non-consideration of such report by the magistrate to assail Annexure A order with a further challenge that the complaint filed after such report is a second complaint and, therefore, not entertainable, unless special reasons are made out, which are stated to be lacking in the case, I find, such objections to the cognizance taken cannot be given much consideration at all. A complainant aggrieved by the refer report of the police even in a case where such report has been accepted without notice to him by the magistrate can still prosecute his case filing a complaint, and, if
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any such complaint is filed it has to be considered on its merits and in accordance with law. {See Kishore Kumar Gyanchandani v. G.D.Mehrotra & anr. {2001(3) Crimes 205 (SC)}.
5. Annexure C is the copy of the plaint in the suit filed by the complainant for Specific Performance of the agreement of sale and Annexure D copy of his complaint filed before the magistrate imputing the offence under Section 420 read with Section 34 of the IPC against the accused persons. Whereas in Annexure C plaint, it is alleged, the agreement of sale was entered into and advance sale price was collected by the accused persons promising to clear off the liabilities subsisting over the property, in Annexure D complaint to prosecute the accused persons for the offences cited supra he has alleged that the liability
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subsisting over the property was not disclosed to him when the agreement of sale was entered into, and thereby both the accused had committed the offence of cheating. When Annexure C plaint is an incontrovertible document, the allegation set out therein contradicting the case of the complainant in his complaint can definitely be looked into by this court in exercise of its inherent powers to consider whether the steps for prosecution initiated by the complainant could be allowed to be pursued, especially where after a thorough investigation a refer report has been filed by the police that the disputes canvassed in the case are purely of a civil nature. Whereas in Annexure C plaint it is alleged that after agreement of sale further sums were collected to clear off the existing liability
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over the property in the bank when complaint was filed, as seen from Annexure D, to suit the case of cheating canvassed any reference to the prior knowledge of the complainant over the subsisting liability to the bank has been withheld. When there was breach of contract over the agreement of sale, evidently, the complainant initiated action both before the civil and criminal courts, and in filing the complaint Annexure D to suit his case he has materially suppressed the knowledge of the pre-existing liability over the properly covered by the agreement of sale, to set forth a case of cheating by the accused persons. Agreement of sale entered into by the parties, could not be given effect to, even assuming that it was due to the fault of the accused persons that cannot be a ground for prosecuting them
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for the offence imputed. The learned Magistrate has taken cognizance of the offence imputed against the accused on the basis of the allegation raised in the complaint that there was suppression on the part of the accused persons regarding the liabilities subsisting over the property when it was agreed to be sold and part consideration was received by them. As indicated earlier Annexure C copy of the plaint which was more or less simultaneously filed when the criminal proceedings were launched clearly demonstrate that such allegation raised by the complainant was unworthy of any merit. When such be the case, I find, criminal proceedings initiated against the petitioner/accused in C.C.No.542 of 2010 on the file of the Judicial Magistrate of the First Class, Perumbavoor amount to an abuse of the
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process of court and invoking the inherent powers of this court, the proceedings thereof are quashed.
Crl.M.C is allowed as above.
Sd/(S.S.SATHEESACHANDRAN) JUDGE
**sk/-**
**//true copy//**
