Ivan Peter Rozario v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936** ## **WP(C).No. 9762 of 2014 (U)** **--------------------------------------** **PETITIONER:** - **-------------------** **IVAN PETER ROZARIO, S/O.VINCENT D ROZARIO, DEO-GRATIAS, KALOOR, KOCHI-17, ERNAKULAM DISTRICT.** **BY ADV. SRI.SHERRY J. THOMAS.** **RESPONDENTS:** **-----------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DIRECTOR GENERAL OF POLICE,** - **KERALA POLICE, THIRUVANANTHAPURAM-695 010.** **3. COMMISSIONER OF POLICE, KOCHI CITY, ERNAKUKLAM-682 011.** **4. INSPECTOR GENERAL OF POLICE, OFFICE OF THE INSPECTOR GENERAL OF POLICE, SHANMUGHAM ROAD, KOCHI-682 031.** **5. CIRCLE INSPECTOR OF POLICE,** - **ERNAKULAM NORTH POLICE STATION, ERNAKULAM-682 018.** **6. SUB INSPECTOR OF POLICE, ERNAKULAM NORTH POLICE STATION, ERNAKULAM-682 018.** **BY GOVERNMENT PLEADER SMT. S. HYMA.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.9762/2014 - U:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE F.I.R & SEIZURE MAHAZAR OF THE ERNAKULAM NORTH POLICE STATION. EXT.P2: COPY OF THE JUDGMENT IN O.S.NO.657/2011 OF 2ND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM. EXT.P3: COPY OF THE PLAINT IN O.S.NO.640/2012 ON THE FILE OF THE SUB COURT, ERNAKULAM. EXT.P4: COPY OF THE CIRCULAR NO.52/2009 DATED 18.12.2009 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------W.P.(C). No.9762 of 2014 --------------------------------------------------------------------Dated this the 15[th] day of July, 2014 ## J U D G M E N T This writ petition is filed by the petitioner, who is the defacto-complainant in Crime No.1387/2011, for issuing direction to the investigating officer to conduct proper investigation or change of investigation under Article 226 of the Constitution of India. 2. It is alleged in the petition that, petitioner is a senior citizen living with his wife and children. Knowing that, he was in financial difficulties, a money lender by name John C. Cherian, used to visit his house constantly and his continuous visit reposed confidence on the petitioner and accordingly, he gave an amount of ₹20,43,000/- in the guise of helping the petitioner, to close his loan transactions with others and promised that they would avail a purchase loan for 1.5 crores, either from₹ Indian Bank or Dhanalakshmi Bank within ten days for the w.p.c..9762/ 2014 2 petitioner. Thereafter, petitioner was informed that, the loan will not be available. When the petitioner demanded back the documents, it provoked the money lender and he demanded interest at the rate of 800/- per day for every₹ one lakh rupees and execute a sale deed of the property, in which he was residing with his family. On 25.03.2011, the above said money lender along with some persons, trespassed into his property and threatened that, his wife and children will be kidnapped, if he did not accede for their demand. On 30.03.2011, the petitioner was forcibly taken by some goondas to the Sub Registrar’s Office, Ernakulam, and forced him to execute a sale deed of his only residential house, while the petitioner’s wife and son were illegally detained inside the house under the supervision of some goondas engaged by him with lethal weapons and not allowing them to move. So he filed a private complaint before the Additional Chief Judicial Magistrate Court (Economic Offence), Ernakulam, and that was forwarded to the police for investigation and w.p.c..9762/ 2014 3 accordingly Crime No.1387/2011 of Ernakulam Town North police station was registered, alleging offences under Section 447, 449, 451, 383, 386, 503, 120(B) of Indian Penal Code and Section 17 and 18 of Kerala Money Lenders Act, 1958. Some documents were also seized from the possession of the accused persons, but thereafter, no effective investigation was conducted and the investigation is being delayed on account of the influence of the accused persons. So the petitioner has no other remedy, except to approach this court, seeking the following relief: i. Call for the entire records pertaining to the investigation conducted so far into Crime No.1387/20101 of Ernakulam Town North Police Station including case diary. ii. Constitute a special investigation team headed by a higher police official at least in the rank of Dy.S.P. and entrust the reign of investigation in Crime No.1387/2011 of Ernakulam Town North Police immediately. iii. To direct the 3[rd] respondent to comply with the directing in Ext.P4 circular issued by the 2[nd] respondent with special mention to Crime No.1387/2011 of Ernakulam Town North Police Station. iv. Such other relief's that this Hon'ble Court may deem fit and proper to grant, in the interest of justice. v. Provide cost of the proceedings. 3. On the basis of the allegations in the petition, w.p.c..9762/ 2014 4 the Sub Inspector of Police, Ernakulam, Town North Police Station, was directed to file a statement and he had filed a statement, which reads as follows: “The petitioner of the above WPC Sri.Ivan Peter Rosairo is the complainant of the Crime 1387/11 U/s.447, 449, 451, 383, 386, 503, 120B & Sec.17, 18(b) of Kerala Money Lenders Act, registered in pursuance to the CMP 2556/2011 filed by the complainant before the Hon'ble ACJM (E/O) Court received to the station U/s.156(3) Cr.P.C for registering the crime for investigation. The CMP was filed by the complainant against (1) John C. Cheriyan (2) Aneesh Thalkkara (3) Muhammed Haneefa (4) V.K. Hashim for their criminal conspiracy made to create a huge loss to the complainant. Brief of the case that the accused person with the intention to earn more profit, on March 2011 the accused persons lended an amount of Rs.20,43,000/- to the complainant for usury, to remit in ICICI Bank which the complainant had obtained previously, and received the deed of his property and blank stamp papers by A1 as security for the money lended. The accused persons trespassed into the house of the complainant, using deadly weapons threatened the complainant after closing complainants family members in a room and on 30.03.2011, forced him to the Sub Registrar Office and made agreement that the property of the complainant worth 1.5 crore is registered in the name of accused 2 & 3 for Rs.46,84,200/-. During the course of investigation made, it is revealed that the complainants property involved in survey No.66/2 of Elamkulam Village and the double storied building situated was pledge in ICICI Bank of MG Road for an amount of Rs.13,56,168/- which on 09.02.2010 had become 20,43,000/- rupees. The complainant to repay the dues in ICICI Bank, borrowed an amount of Rs.20,43,000/- from A1 and on 13.12.2010 complainant and A4 made an agreement to sale the property of the complainant for Rs.60,00,000/- but on 30.03.2011 complainant registered the property to A2 & A3 for Rs.46,84,200/-and during the time of registration w.p.c..9762/ 2014 5 the complainant agreed to the Registrar that he had received the amount completely. During the investigation it has also been revealed that the complainant had not made any appeal against the registration during the appeal period of 1 month. Moreover, relating to the above said matters there is a case registered by the complainant before the Hon'ble Ernakulam Munsiff Court as OS 640/11 which is pending trial. Dur to the above revealed fact and pending case before the Munsiff Court, the crime has been final reported as Civil Nature and the final report has been submitted before the Hon'ble ACJM (E/O) Court”. 4. On the basis of the statement filed by the Sub Inspector of Police, Ernakulam, Town North Police Station, a report was called for from the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam, regarding the present stage of the case and accordingly the Additional Chief Judicial Magistrate, (Economic Offences) Ernakulam, sent a report, which reads as follows: “With reference to the above I may submit that final report (refer charge) in Cr.No.1387/11 of E.T.North Police Station was laid before this court on 21.5.2014. It is mentioned in the report that OS 640/11 is pending before the Munsiff Court, Ernakulam with regard to the same subject matter and hence refer charge was filed. It is further mentioned in the report that despite notice was offered to deliver to complainant, he refused to accept it. After receiving the refer report, notice was issued to complainant to appear before this court on 30..7.2014 to hear him before accepting the refer charge or to w.p.c..9762/ 2014 6 protest. The above are submitted for kind consideration”. 5. Heard the learned counsel for the petitioner and learned Public Prosecutor. 6. The counsel for the petitioner submitted that, only after the petition was filed, some move was done in the investigation and in order to help the accused persons, they have filed a false refer report before the court. 7. The learned Government Pleader submitted that, proper investigation was conducted and since it was found that, it was a civil dispute, they filed a refer report stating these facts. 8. It is an admitted fact that, on the basis of a private complaint filed by the petitioner before the Additional Chief Judicial Magistrate Court(Economic Offences), Ernakulam, alleging certain offences against the alleged money lenders, which was forwarded to the police for investigation by the learned magistrate under Section w.p.c..9762/ 2014 7 156(3) of the Code of Criminal Procedure and a case was registered as Crime No.1387/2011 of Ernakulam Town North Police Station, alleging offences under Section 447, 449, 451, 383, 386, 503 and 120(B) of the Indian Penal Code and Section 17 of the Kerala Money Lenders Act, against four persons and it is seen from the statement filed by the investigating officer that, after investigation, final report was filed, stating that, no further action is required, as it is of civil nature and it is seen from the report of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, that, after receiving the refer report, notice has been issued to the complainant to appear before that court on 30.07.2014 for hearing on the question of accepting the refer charge or to protest the same. So under the circumstances, this court feels that, there is no further direction need be given at this stage, as the petitioner can raise all the objections before the concerned magistrate court, before which the refer report has been filed and that court is now considering the matter w.p.c..9762/ 2014 8 and the magistrate can consider the objection and pass appropriate orders on the same. In view of the above observation and discussions, this court feels that, the petition can be disposed of with the above observation, leaving open the right of the petitioner to raise all his objections raised by him before this court before the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam, where the refer report has been filed and is posted for hearing on the question of accepting the refer report and filing objections to the same. With the above direction and observation, this writ petition is disposed of. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy // P.A. to Judge ss