Joseph Varghese and K.C. Mathew v. State of Kerala and K.R. Somarajan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 Crl.MC.No. 3991 of 2010() ------------------------CRIME NO.318/2010 OF KOYIPURAM POLICE STATION PETITIONER(S): ACCUSED 1 & 2 ---------------------------- 1. JOSEPH VARGHESE, AGED 72 YEARS, S/O.JOSEPH, PUTHENPARAMBIL KULATHINGAL HOUSE, KADAPRA (PO), KOYIPURAM VILLAGE, THIRUVALLA TALUK. 2. K.C.MATHEW, AGED 72 YEARS, S/O.CHACKO, KUNCHONKALA PUTHENPARAMBIL HOUSE, KADAPRA (PO), KOYIPURAM VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. STATE OF KERALA-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.R.SOMARAJAN, S/O.K.K.RAMAKRISHNAN, KALLUZHATHIL HOUSE, ERAVIPEROOR, THIRUVALLA TALUK. ADV. SRI.C.S.MANILAL FOR R2 SRI.S.NIDHEESH FOR R2 PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------Crl.M.C. No.3991 of 2010 -------------------------------------Dated this the 20[th] day of January, 2011.** ## **ORDER** Petitioners, claiming title over a total of seven cents in Survey Nos.372/1, 372/6 and 372/7as per sale deed Nos.7010 of 1983 and partition deed No.186 of 1969 entered into a transaction with respondent No.2, the defacto complainant as per which the latter purchased the said seven cents as per Annexure-A1, sale deed dated 28.12.2009 for consideration mentioned therein. According to respondent No.2, when he wanted the boundary of the said property to be fixed through the Tahsildar concerned and for the said purpose the Taluk Surveyor was deputed, the latter informed respondent No.2 that he has got a notice through lawyer stating that the property is not to be measured and hence, could not so be done. Feeling suspicious in the matter respondent No.2 is said to have made a detailed enquiry into the matter when it was revealed that of the property assigned to him as per Annexure-A1, sale deed petitioners had valid title over only 1.82 Ares and that the remaining 99 sq. metres is road puramboke over which the petitioners had no right or title. It was also revealed that since the said 99 sq.metres is revenue road puramboke which could not be assigned by petitioners, Revenue Authorities had initiated action for eviction of petitioners from the said 99 sq. metres of land and it is suppressing that fact petitioners claiming absolute title over the entire seven cents assigned the property to him. Respondent No.2 claimed that he was induced to purchase the property for a **Crl.M.C.No.3991/2010** 2 total consideration of Rupees five lakhs on petitioners making him believe that they have title over the property. Alleging that petitioners committed offences punishable under Sections 420, 468 and 471 read with Section 34 of the Indian Penal Code (for short, “the IPC”), respondent No.2 filed a complaint before the learned Chief Judicial Magistrate, Pathanamthitta which was forwarded to the Police for investigation under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”). Police on the strength of that complaint registered Crime No.318 of 2010 for offences punishable under Sections 420, 468 and 471 read with Section 34 of the Code. Petitioners, in this proceeding seek to quash Annexure-A5, FIR. Learned counsel for petitioner contends that the allegations in the complaint appended to Annexure-A5, FIR are not sufficient to constitute any offence as alleged. It is also contended that at any rate it is only a civil dispute regarding title of property conveyed to respondent No.2 which has to be resolved through the process of civil court and no through criminal court . According to the learned counsel, assuming that respondent No.2 has suffered loss due to any defect of title of property, Annexure-A1, sale deed itself provides for respondent No.2 to recover damages for such loss from petitioners. In the circumstances initiation of criminal proceedings is nothing but an abuse of process of court. Learned counsel placed reliance on the decisions in **State of** **Hariyana v. Bhajan Lal [(1992) 1 SCC 335], Anil Mahajan v. Bhor Industries Ltd. and another [(2006) 1 SCC (Cri.) 746], Ram Biraji Devi and another v. Umesh Kumar Singh and another [(2006) 6** **Crl.M.C.No.3991/2010** 3 ## **SCC 669], Devendra v. State of U.P. (2009 (2) KLT SN 94 (Case No.93)** and **V.Y.Jose and another v. State of Gujarat and another** **[(2009) 3 SCC 78]** . Learned counsel has referred me to the documents appended to this petition and contended that it was after respondent No.2 was satisfied with the title of petitioners that he ventured to purchase the property as per Annexure-A1. Per contra it is contended by learned counsel for respondent No.2 that Exts.R2(a) to (g) would show that petitioners had no good title over the 99 sq. metres which is also included in Annexure-A1, sale deed to their knowledge even before Annexure-A1, sale deed was executed and suppressing the said fact and claiming absolute title over the entire property including the said 99 sq. metres property was conveyed to respondent No.2 and petitioners received the sale consideration from respondent No.2. Learned counsel contends that if there was no assurance made by petitioners regarding their title, respondent No.2 would not have ventured to purchase the property over a portion of which petitioners have no title. It is also contended that this petition is premature in the sense that Police is investigating the case and it is within the realm of investigation to find what offence, if any is made out. Interference at this stage is not warranted, it is contended. Learned Public Prosecutor contends that the investigation is proceeding and it is open to the Investigating Officer to ascertain whether any offence has been made out and if so what is the offence. It is also submitted by learned Public Prosecutor that the role of Revenue Authorities in issuing patta in respect of the disputed land in the name of petitioners or their predecessor-in-interest is also being investigated **Crl.M.C.No.3991/2010** 4 by the Police. 2. Now the matter is under investigation by the Police. Question is whether at this stage interference under Section 482 of the Code is required. Decisions rendered by the Supreme Court on this point would inform me that it is only when the allegations are so frivolous and absurd that no reasonable or prudent man would believe in the existence or non-existence of that fact, that interference is required. The decisions relied on by learned counsel for petitioners also are in that line. In **State of Hariyana v. Bhajan Lal** it is held that the High Court could interfere under Section 482 of the Code in the matter of pending investigation only when the allegations in the FIR and complaint are so absurd or inherently improbable that no prudent man would ever reach a just conclusion that there is just ground to proceed (in the matter). ## In **Anil Mahajan v. Bhor Industries Ltd. and another** it has been held that the substance of the complaint has to be looked into. That was a case where the Supreme Court found that there was only a breach of contract resulting in civil liabilities and no offence was involved. In **Ram Biraji Devi** ## **and another v. Umesh Kumar Singh and another** it is held that the inherent jurisdiction of the High Court is to be exercised only in extreme exception. That was a case where the complaint alleged that appellant refused to execute a written agreement (pursuant to an oral agreement between the parties) transferring the plot in question inspite of complainant even paying certain amount by way of advance. The Supreme Court held that it only created **Crl.M.C.No.3991/2010** 5 a civil liability and no offence is involved. In **Devendra v. State of U.P.** the question considered was whether on the allegations made an offence of breach of trust would stand. It was held that intention to cheat should exist even at the very beginning of the transaction to attract the offence. 3. I shall consider the question whether interference under Section 482 of the Code is required in the light of the decisions referred and the principles stated above. 4. It is apposite to refer to Annexure-A1, sale deed where petitioners claimed title over the entire seven cents referred to therein. It is stated that of the said seven cents, 3 ½ cents belonged to petitioner No.1 as per sale deed No.7010 of 1983 while the remaining 3 ½ cents belonged to the father of petitioner No.2 as per partition deed No.186 of 1969 and by inheritance it devolved on petitioner No.2. It is pointed out by the learned counsel for respondent No.2 that nowhere in Annexure-A1, sale deed there is reference to any portion of the said seven cents being revenue road puramboke and that the said portion of the land was acquired by petitioners or predecessor-in-interest as per the patta issued by the Revenue Authorities. It is also pointed out by learned counsel for respondent No.2 that it is on the assurance that petitioner has title over the property as per the sale deed and partition deed referred to in Annexure-A1, sale deed that he purchased the property. It is pointed out by the learned counsel from Ext.R2(f) that the Tahsildar, Thiruvalla had, even as early as in 2007, submitted a report to the District Collector concerned stating that of the property possessed by petitioners 99 sq. metres is revenue puramboke in **Crl.M.C.No.3991/2010** 6 respect of which the Revenue Authorities had issued a patta and that was created fraudulently. The Tahsildar therefore recommended that the patta issued in respect of the disputed land be cancelled. It is pointed out by learned counsel for respondent No.2 from Exts.R2(a) to (c) that petitioners were aware of the said fact even much before Annexure-A1, sale deed was executed and that making claim over the entire property the sale deed was executed. Respondent No.2 was unaware of the litigation between petitioners and others. It is in these circumstances that respondent No.2 alleged that petitioners committed offence punishable under Section 420 read with Section 34 of the IPC. Prima facie, there is no reason to interfere, at this stage. 5. Then the question arises is whether offences punishable under Sections 468 and 471 read with Section 34 of the IPC is made out. Learned counsel for petitioners contended that even going by the averments in the complaint no offence of forgery as defined under Section 464 of the IPC is made out in that it is not a case where the document was purported to be executed by somebody else. It is contended that even if it is found that petitioners have no title over 99 sq. metres referred to in Annexure-A1, sale deed no question of forgery as defined under Section 464 of the Code would arise. Reliance is placed on the decision of this Court in **Hydru Haji v. State of Kerala** (2011 (1) KLT 63) where it is held that to be a false document for the purpose of Section 464 of the Code the document should have been made or executed by a person claiming to be some one else or as authorized by somebody else. Learned Public Prosecutor contends that this is a matter which **Crl.M.C.No.3991/2010** 7 the Investigating Agency should look into and consider whether any offence under Sections 468 and 471 read with Section 34 of the Code is made out. 6. I am inclined to agree with the view of learned Public Prosecutor. Now it is not as if investigation is completed and the Investigating Agency has submitted a final report alleging commission of offences under Sections 468 and 471 read with Section 34 of the IPC as well. Certainly the Investigating Agency has to look into the question whether on the averments made in the complaint and the facts revealed in the investigation any offence punishable under Sections 468 and 471 read with Section 34 of the IPC is made out. At this stage I do not intend to interfere since it is within the power of the Investigating Agency to look into the matter and find whether any offence and if so what offence is committed by petitioners. In the light of above, request of petitioners to quash proceedings in Crime No.318 of 2010 of Koyipuram Police Station cannot be allowed. Resultantly this petition fails. It is dismissed with the observations made above. **THOMAS P.JOSEPH, Judge.** **cks**