Kamalamma v. State of Kerala & De facto Complainant; Balagopal @ Ravichandran @ Kumar & Jayachandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **Crl.MC.No.2162 OF 2015** **AGAINST C.C. NO.16/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-XI, THIRUVANANTHAPURAM** **CRIME NO.263/2014 OF PEROORKADA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/3RD ACCUSED:** **KAMALAMMA, AGED 74 YEARS, D/O.BHARGAVAN PILLAI,TC 2/1779, KAMALA VILASOM,GOUREESAPATTOM, PATTOM P.O, THIRUVANANTHAPURAM** **BY ADV. SRI.RAJESH P.NAIR** ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** **1 STATE OF KERALA, RESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031 2 JOSHI PRABHAKARAN, RESIDING AT 'KAILASM VEEDU',GRA-609, GOWRESAPATTOM WARD, GOWRESAPATTOM P.O, THIRUVANANTHAPAURAM – 695 013.** **R2 BY ADV. SR.RENJIT GEORGE BY ADV. SRI.C.D.ANIL BY ADV. SRI.SAJJU.S BY ADV. SRI.K.SHAJ R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.08.2019, ALONG WITH Crl.MC.3553/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.Nos.2162/2015 & 3553/2015 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** **Crl.MC.No.3553 OF 2015** **AGAINST C.C. NO.16/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-XI, THIRUVANANTHAPURAM** **CRIME NO.263/2014 OF Peroorkada Police Station, Thiruvananthapuram** ## **PETITIONERS/1ST AND 2ND ACCUSED:** **1 BALAGOPAL @ RAVICHANDRAN @ KUMAR, AGED 44 YEARS, S/O. SREEDHARN NAIR, SREE MOOKAMBIKA KRIPA VEEDU, CRA 708, CHALAKUDI LANE, PETTA WARD, VANDHIYOOR VILLAGE, TRIVANDRUM. 2 JAYACHANDRAN, AGED 48 YEARS, S/O. SREEDHARAN NAIR, VP 5/434, KURISUMUTTOM, KARAKODE KONAM, VILAVOORKAL VILLAGE, TRIVANDRUM.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** Crl.MC.Nos.2162/2015 & 3553/2015 3 **2 JOSHI PRABHAKARAN, RESIDING AT KILASAM VEEDU, GRA - 609, GOWRESAPATTOM WARD, GOWRESAPATTOM P.O., THIRUVANANTHAPURAM - 695 001.** **R2 BY ADV. SRI.C.D.ANIL BY ADV. SRI.RENJIT GEORGE** **SRI.M.S.BREEZ, SR. PUBLIC PROSECUTOR,** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.08.2019, ALONG WITH Crl.MC.2162/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.Nos.2162/2015 & 3553/2015 4 ## **ORDER** These petitions are filed under Section 482 of the Cr.P.C. 2. Crl.M.C.No.3553 of 2015 is preferred by the accused Nos.1 and 2 and Crl.M.C.No.2162 of 2015 is preferred by the 3[rd] accused in C.C.No.16 of 2015 on the file of the Judicial First Class Magistrate Court-XI, Thiruvananthapuram. 3. The 3[rd] accused is the mother of the accused Nos.1 and 2 and she is the wife of late Sreedharan Nair, who expired on 07.09.2012. The 2[nd] respondent is the neighbour of the petitioners. 4. On 19.02.2014, 2[nd] respondent approached the learned Judicial Magistrate of First Class-II, Thiruvananthapuram and filed a complaint against the petitioners herein. The complaint was forwarded to the Peroorkada Police Station and Crime No.263 of 2014 was registered under Sections 452, 464, 465, 466, 468, 471 and 506(1) of the IPC. Investigation was conducted by the Sub Inspector of Police and final report was laid before the learned Magistrate for offences under Sections 294(b), 120B, 511 of Section 420, 447, 506(i) r/w. Section 34 of the IPC. 5. The allegation against the petitioners is that property having an extent of 18 cents was sold to the 2[nd] respondent and his wife by the late husband of the 3[rd] accused for a total consideration of Rs.9.5 lakhs as per Crl.MC.Nos.2162/2015 & 3553/2015 5 Document No.1824 of 2007 of the Pattom SRO. The accused Nos.1 and 2 were the attestors to the deed. Using the said sale consideration, the petitioners have purchased other items of property in their names. He alleges that on 22.12.2013, at about 9.30 am, the accused Nos.1 and 2 trespassed into his residential home and threw photocopy of the settlement deed vide No.351 of 1973 and some other documents on his face and they threatened that he would be ejected from the said property along with his family members. They are also alleged to have demanded a sum of Rs.10 lakhs for refraining from acting as aforesaid. It is also alleged that he was abused by hurling certain filthy words. 6. Sri.Vinay V., the learned counsel appearing for the accused Nos.1 and 2 urged that the allegations leveled against the petitioners are absolutely false. According to the learned counsel, the de facto complainant had initially approached the Additional Chief Judicial Magistrate and filed Annexure-G complaint on 13.02.2014 under Section 190 r/w. Section 200 of the Cr.P.C. arraying the petitioners as the accused. The learned Magistrate posted the case for conducting an enquiry under Section 202 of the Cr.P.C. Without going forward with the said complaint, the 2[nd] respondent filed Annexure-F complaint on 14.02.2014 before the Judicial Magistrate of the First Class-II, wherein the very same allegations are made. The said complaint was forwarded to the police leading to the registration of Crime No.263 of 2014. According to the learned Crl.MC.Nos.2162/2015 & 3553/2015 6 counsel, the 2[nd] respondent was searching for a forum of his choice, which fact itself would show that he had approached the court with unclean hands. Referring to Annexure-H order, it is submitted by the learned counsel that the learned Additional Chief Judicial Magistrate had dismissed Annexure-G complaint under Section 203 of the Code. 7. The learned counsel would further contend that the 2[nd] respondent after purchasing the property from late Sreedharan Nair had put up a residential home in the said property. He being a jeweler and quite affluent, started constructing a wall surrounding his house having a height of over 8 feet. The 3[rd] accused approached the learned Munsiff and filed O.S. No.1900 of 2009 with a prayer to restrain the 2[nd] respondent from carrying out the construction violating the easement right to natural air and light and against the provisions of the Kerala Municipality Building Rules. The learned Munsiff decreed the suit in favour of the 3[rd] accused by Annexure-A judgment dated 20.12.2013. According to the learned counsel, in the plaint which was filed in the year 2009, the 3[rd] accused had asserted that the property was sold to the 2[nd] respondent and his wife by her late husband. However, she was not aware of the fact that late Sreedharan Nair had, in fact, executed a settlement deed in favour of his wife and children in the year 1973. This fact came to her notice only when she had occasion to inspect the personal belongings of late Sreedharan Nair on 11.11.2013. On Crl.MC.Nos.2162/2015 & 3553/2015 7 getting aware of the said fact, the 3[rd] accused filed O.S. No.14 of 2014 before the Sub Court, Thiruvananthapuram seeking decree of partition of her 1/3[rd] right and also to restrain the defendants in the said case from alienating the plaint schedule property or from creating any charge. On 17.01.2014, the learned Subordinate Judge had passed Annexure-B order of injunction in favour of the 3[rd] accused and the defendants in the said suit, which include the 2[nd] respondent herein, were restrained from committing any act of waste. It is submitted that the said suit is pending. It was after receiving the order of injunction that the 2[nd] respondent had approached the learned Magistrate on 14.02.2014 and had set the law in motion. According to the learned counsel, the petitioners have only approached the Civil Court when they found that their civil rights have been infringed and no incident of the nature alleged had taken place. The learned counsel would further contend that the only witnesses, who have been cited in the final report, are the 2[nd] respondent and his wife. As the civil suit was pending between the parties, there is no question of the offence under Section 447 of the IPC being attracted. He would further contend that Section 294(b) of the IPC will not be attracted as the alleged abuse was not hurled in public view. According to the learned counsel, the petitioners have been roped in, in a false case with intent to harass them. 8. Sri.Rajesh P.Nair, the learned counsel appearing for the 3[rd] accused, Crl.MC.Nos.2162/2015 & 3553/2015 8 has supported the submissions of the learned counsel appearing for the accused Nos.1 and 2. He contended that the 3[rd] accused is a lady aged about 80 years and she has nothing to do with the allegations leveled against her. The property was assigned by late Sreedharan Nair when he was alive and the property is still being enjoyed by the party respondent and his family. Only when she received information about the partition deed, which was executed in the year 1973, she had approached the Civil Court for enforcing her rights. By no stretch of imagination will the offence under Section 511 of Section 420 of the IPC be made out against her is the submission. In order to substantiate his contention, the learned counsel would refer to the plaint filed by the 3[rd] accused before the Munsiff's Court, wherein she had asserted that the property was, in fact, assigned by late Sreedharan Nair in favour of the 2[nd] respondent and his wife. 9. The learned counsel appearing for the 2[nd] respondent has opposed the prayer. According to the learned counsel, the petitioners had absolute knowledge that late Sreedharan Nair had no subsisting right to assign the property to the 2[nd] respondent. However, they acted with prior concert and induced the 2[nd] respondent to purchase the property. It was only when the accused Nos.1 and 2 started threatening him, that he had lodged the complaint before the Police. The entire aspects were taken note of by the Investigating officer and in that view of the matter, no interference is warranted by this Court, Crl.MC.Nos.2162/2015 & 3553/2015 9 contends the learned counsel. 10. I have considered the submissions advanced and have perused the records. 11. It appears that two civil suits have been instituted by the 3[rd] accused against the 2[nd] respondent and others. The first suit was instituted before the Munsiff's Court seeking an order of prohibitory injunction restraining the party respondent from obstructing the free passage of natural air and light and also from carrying out any construction against the provisions of the Kerala Municipality Building Rules. The second suit was instituted in the year 2014 after securing possession of the gift deed executed in the year 1973. The said suit is one for partition. The 3[rd] accused has obtained an interim order in her favour on 17.01.2014. It is thereafter that two separate complaints were lodged. The first one was lodged before the Additional Chief Judicial Magistrate on 13.12.2014. It appears that the said complaint was not forwarded to the police. On the next day itself, another complaint was lodged before the Judicial Magistrate of the First Class-II, Thiruvananthapuram, which was forwarded to the police. No explanation is offered as to why the second complaint was lodged when the first complaint was pending before the Additional Chief Judicial Magistrate. From Annexure-H produced in Crl.M.C. No.3553 of 2015, it is evident that the first complaint was dismissed under Section 203 of the Code on Crl.MC.Nos.2162/2015 & 3553/2015 10 8.10.2014. Both the complaints are identical and the accused are also one and the same. From the sequence of events, it appears that the complaint was lodged on receipt of the injunction order from the Civil Court. 12. Now the question is whether, the offences alleged are made out. Even from the complaint, it is evident that the alleged incident had taken place inside the house of the 2[nd] respondent. In that view of the matter, Section 294(b) of the IPC may not have any application. In order to bring home the offence under Section 511 of 420 of the IPC, the allegation is that the petitioners induced the 2[nd] respondent to part with money with intent to defraud him. The sale deed was executed in favour of the 2[nd] respondent by late Sreedharan Nair, the father of accused Nos.1 and 2 and the husband of the 3[rd] accused. The accused Nos.1 and 2 were minors in the year 1973 when the gift deed was executed. Furthermore, a reading of the judgment in O.S. No.1900 of 2009 would reveal that the 3[rd] accused was absolutely unaware that the wife and children had any rights whatsoever in the property which was alienated. She states in unmistakable terms that her husband had assigned the property to the 2[nd] respondent and his wife in the year 2007. If, in fact, she was aware, she would definitely have filed a suit for partition then and there itself instead of enforcing her easement rights. 13. The Apex Court in **Medchl Chemicals & Pharma (P) Ltd. v.** Crl.MC.Nos.2162/2015 & 3553/2015 11 **Biological E. Ltd.[1]** has discussed at length about the scope and ambit while exercising power under Section 482 Cr.P.C. It will be apposite to refer to the relevant portion of the judgment wherein it was held as under : "Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the chargesheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as the rarest of rare so as not to scuttle the prosecution. With the lodgment of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount". ## 14. The principles laid down in the above decision can be applied to the instant petitions as well. Having considered the facts of the case from all angles, 1 [2000(3) SCC 269] Crl.MC.Nos.2162/2015 & 3553/2015 12 I am of the view that permitting the prosecution to continue would result in abuse of process. In the result, these petitions are allowed. Annexure-E final report and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.16 of 2015 on the file of the Judicial First Class Magistrate Court-XI, Thiruvananthapuram are quashed. **SD/-** **RAJA VIJAYARAGHAVAN V.,** **JUDGE** IAP **//TRUE COPY// P.A. TO JUDGE** Crl.MC.Nos.2162/2015 & 3553/2015 13 ## **APPENDIX OF Crl.MC 2162/2015** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE JUDGMENT IN O.S NO 1900/2009 DATED 20-12-2013 OF ADDITIONAL MUNSIFF'S COURT-III,THIRUVANANTHAPURAM ANNEXURE B TRUE COPY OF THE ORDER OF INJUNCTION IN I.A NO.2902014 IN O.S NO.14/2014 DATED 17-012014 OF THE IIND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM ANNEXURE C TRUE COPY OF THE PLAINT IN O.S NO 14 OF 2014 ON THE FILE OF THE IIND ADDITIONAL SUB COURT, THIRUVANANTHAPRUAM ANNEXURE D TRUE COPY OF THE GIFT DEED NO 351/1973 EXECUTED BY THE SAID SREEDHARAN NAIR ANNEXURE E CERTIFIED COPY OF THE CERTIOFIED COPY OF THE FINAL REPORT IN C.C NO 16/15 IN CRIME NO 263/14 OF PEROORKADA POLICE STATION** **RESPONDENTS' EXHIBITS: ANNEXURE R2(A) ATTESTED COPY OF THE SALE DEED NO.1382 OF 2007 ON THE FILE OF SRO, NEMAM. ANNEXURE R2(B) ATTESTED COPY OF THE SALE DEED NO.2005/2007 ON THE FILE OF SRO, THIRUVANANTHAPAURAM ANNEXURE R2(C) THE PHOTOCOPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY SRO, PATTOM DATED 13.06.2007. ANNEXURE R2(D) PHOTOCOPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY SRO, PATTOM DATED 12/12/2006 ANNEXURE R2(E) PHOTOCOPY OF THE FIR IN CRIME NO.1890 OF 2014. ANNEXURE R2(F) PHOTOCOPY OF THE CHARGE SHEET IN CRIME NO.1890 OF 2014.** Crl.MC.Nos.2162/2015 & 3553/2015 14 ## **APPENDIX OF Crl.MC 3553/2015** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE-A**|**TRUE COPY OF THE JUDGMENT IN OS NO**| |---|---| ||**1900/2009 DT. 20.12.13 OF ADDITIONAL**| ||**MUNSIFF'S COURT, THIRUVANANTHAPURAM.**| |**ANNEXURE-B**|**TRUE COPY OF THE ORDER OF INJUNCTION IN IA**| ||**NO.2902014 IN OS NO.14/2014 DT. 17.1.14 OF**| ||**THE IIND ADDITIONAL SUB COURT,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE-C**|**TRUE COPY OF THE PLAINT IN OS NO.14/2014 ON**| ||**THE FILE OF THE IIND ADDITIONAL SUB COURT,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE-D**|**TRUE COPY OF THE GIFT DEED NO.351/1973**| ||**EXECUTED BY THE SAID SREEDHARAN NAIR.**| |**ANNEXURE-E**|**CERTIFIED COPY OF THE FINAL REPORT IN CC**| ||**NO. 16/15 IN CRIME NO. 263/14 OF PEROORKADA**| ||**POLICE STATION.**| |**ANNEXURE-F**|**TRUE COPY OF THE COMPLAINT SUBMITTED BY THE**| ||**2ND RESPONDENT BEFORE THE JUDICIAL**| ||**MAGISTRATE OF FIRST CLASS-II,**| ||**THIRUVANANTHAPAURAM**| |**ANNEXURE-G**|**TRUE COPY OF THE COMPLAINT IN**| ||**CMP.NO.1338/14 FILED BY THE SECOND**| ||**RESPONDENT BEFORE THE ADDITIONAL CHIEF**| ||**JUDICIAL MAGISTRATE COURT,**| ||**THIRUVANANTHAPAURAM**| |**ANNEXURE-H**|**TRUE COPY OF THE ORDER DATED 08.10.2014 OF**| ||**THE COURT ADDITIONAL CHIEF JUDICIAL**| ||**MAGISTRATE, THIRUVANANTHAPAURAM**|