K.S. Varghese and Aliyamma Varghese v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943** **CRL.MC NO. 4690 OF 2021** **CMP 16/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,KURUPPAMPADY CRIME 227/2015 OF KURUPPAMPADY POLICE STATION** **PETITIONERS/ACCUSED 1 & 2:** **1 K.S. VARGHESE AGED 80 YEARS S/O. SCARIA, KOCHUTHOTTATHIL HOUSE, THAMMANIMATTOM DESOM, THAMMANIMATTOM KARA, KUNNATHUNADU TALUK, RAMAMANGALAM P.O., ERNAKULAM, PIN-686 663.** **2 ALIYAMMA VARGHESE AGED 78 YEARS,W/O. VARGHESE, KOCHUTHOTTATHIL HOUSE, THAMMANIMATTOM DESOM, THAMMANIMATTOM KARA, KUNNATHUNADU TALUK, RAMAMANGALAM P.O., ERNAKULAM, PIN-686 663.** **BY ADVS. PAUL K.VARGHESE A.A.GEETHA** ## **RESPONDENT/STATE/DEFACTO COMPLAINANT :** **STATE OF KERALA THROUGH STATION HOUSE OFFICER, KURUPPAMPADY POLICE STATION, NEAR PERUMBAVOOR, ERNAKULAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **SR.PP - SMT. SREEJA V.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON 17.03.2022 PASSED THE FOLLOWING:** Crl.M.C.4690/2021 2 ## **O R D E R** Petitioners are the accused in CC 94/2020 on the file of the Judicial First Class Magistrate's Court-III, Perumbavoor which originated from the final report in crime 227/2015 of Kuruppampady police station registered under Sections 406, 409, 420 and 34 IPC. The petitioners are husband and wife, aged about 80 and 70 years respectively. They claim that their daughter Lissy, her husband John and their daughter Jovita John are permanently working abroad for more than 30 years. They had started an old age home namely 'Valariyil Iype Chacko Memorial Trust', hereinafter referred to as the Trust, at Paniyeli near Perumbavoor in 2011. Though the 1[st] petitioner is one of the trustees of the old age home all its expenses are met by the above stated persons; the 2[nd] petitioner has no role in the running of the old age home or the Trust. 2. According to the petitioners, in 2012, one Lilly Lonachan, visited the old age home on numerous occasions and desired to join home as an inmate. She joined the home on 1.2.2012. As requested by her, she was given a separate room with attached bathroom and other facilities like air Crl.M.C.4690/2021 3 conditioner, fridge, water heater etc. A nurse was also deployed to look after her as she was a chronic diabetic patient with insulin support and was also suffering from high hypertension; her physical condition was very weak; she would have collapsed at any time; considering the fact that she wanted to go to toilet very frequently at night times another nurse was deployed for attending her and all possible medical as well as nursing assistance were given to her. During the period of her stay till 03.01.2013 she was treated at hospitals; she underwent bye-pass surgery and still she did not completely recover and thereafter she again collapsed and taken to hospital and ultimately on 03.1.2013 she died of heart attack. For the treatment, nursing, food and other expenses an amount of Rs.11,75,000/was spent by the Trust. But the defacto complainant in the said crime, who is the legal heir of the deceased, did not take care to pay the amount and thus litigation had started between them. On the other hand, the defacto complainant and others were trying to extract the money deposited by the said Lilly Lonachan with the Trust, which was not repayable. Even though an amount of Rs.10 lakhs was deposited by Lilly Lonachan, Rs.11,75,000/was spent towards nursing assistance and medical expenses and thus Crl.M.C.4690/2021 4 amounts were due to them. According to the petitioners, after the said Lilly Lonachan had joined the Trust, no one did take care of her and all the expenses including hospitalisation and transportation charges were met by the Trust. The defacto complainant and others were not interested in her well-being. At last, on her death at Medical College Hospital, Kolenchery due to heart attack, when intimated, someone had come, taken the body and other belongings of Lilly Lonachan from the Trust and thereafter they started raising untenable claims against the Trust and the petitioners. They had also filed a suit, O.S.60/2014, before the Sub Court, Perumbavoor, which was dismissed. That decree has become final. Moreover, the defacto complainant had earlier filed a complaint before the Judicial First Class Magistrate' Court-I, Perumbavoor, as Annexure-A11. By AnnexureA12 order, that complaint was dismissed under Section 203 of the Cr.P.C. Even thereafter, after long lapse of time Annexure-A13 complaint was preferred basing on which, influencing the police, a crime was registered and on conclusion of investigation Annexure-A15 charge sheet has been laid, which is clearly an abuse of the process of Court. Therefore, Annexure-A15 proceedings are sought to be quashed invoking jurisdiction Crl.M.C.4690/2021 5 under Section 482 of the Cr.P.C. 3. I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor representing the respondents. 4. Even though the Court wanted the petitioners to implead the defacto complainant as the additional respondent, the learned Senior Public Prosecutor Smt.Sreeja, who caused to file a statement of the Investigating Officer submitted with the help of the death certificate, that the said Rajeena Lonachan, also is no more, she died on 29.06.2021 and therefore, there is no meaning in impleading any other witness in Annexure-A15 charge sheet to the proceedings. 5. The learned counsel for the petitioners submitted that alleging very same transaction the defacto complainant Rajeena Lonachan had filed a suit as OS 60/2014 before the Subordinate Judge's Court, Perumbavoor. But by Annexure-A17 judgment that suit was dismissed for default after affording sufficient opportunity to the plaintiff/the defacto complainant to adduce evidence, for which she was not prepared. Thus the civil dispute has become final, so that there is no meaning in pestering the petitioners with a criminal complaint on the same transaction. Referring to Crl.M.C.4690/2021 6 Annexure-A12 order of the Judicial First Class Magistrate's Court, Perumbavoor, he said that the subject matter of CMP 2386/2013, which is Annexure-A11 was a civil dispute, based on an agreement. Therefore, the Court found that there are no materials to proceed against the accused persons who are the petitioners and thus that complaint was dismissed under Section 203 of the Cr.P.C. After long lapse of time the said Rajeena Lonachan preferred Annexure-A13 complaint before the Judicial First Class Magistrate's Court, Kuruppampady raising the very same contentions, following which Annexure-A14 crime No.227/2015 was registered and thus by influencing the police Annexure-A15 final report was laid which is bad and therefore it is sought to be quashed. 6. According to the learned counsel, in the light of Annexure-A12 order, further proceedings are bad under Section 300 of the Cr.P.C., that the petitioners are aged citizens, they are being harassed by the defacto complainant, that, earlier, at the instance of the 1[st] petitioner, a crime was registered against the said Rajeena Lonachan, one Basil Joy etc. Even though the said Basil Joy, who was the lawyer of the petitioners, had crossed over and joined with Rajeena Lonachan and tried to trouble the Crl.M.C.4690/2021 7 Trust and the petitioners, crime 2212/2013 was registered in Kuruppampady police station. For quashing the same, the said Basil Joy and others had moved this Court. However, by Annexure-A8 order that attempt was foiled by the Court. He also invited my attention to the observations made by this Court in Annexure-A8 order where it was found that there was no provision in the agreement executed between the Trust and Lilly Lonachan to refund any amount and therefore any claim for return of money is not maintainable. 7. On the other hand, the Sub Inspector who conducted investigation filed a statement from where it is inferred that at the time of admitting Lilly Lonachan in the old age home, the defacto complainant had made a deposit of Rs.10 lakhs for her sister's caring; the agreement provided to refund the amount in case of death or change of circumstances within one year. Her sister had started living in the institution from 17.9.2015 and that she had passed away on 21.09.2015 due to heart attack. The defacto complainant had alleged that her sister was not given proper treatment, that the ornaments worn by Lilly were removed by the petitioners and others and therefore, offence under Sections 406, 409, 420 Crl.M.C.4690/2021 8 read with 34 of the IPC is clearly made out. In the statement he has also stated that the said Rajeena, the defacto complainant, has passed away on 29.06.2021. 8. The fact that the said Rajeena has passed away does not have any bearing in this case; but the only thing is that she could not be arraigned as an additional respondent and could not be given opportunity to argue her version of the case before considering this application for quashing the proceedings. Whatever it may be, after rushing through the materials produced by the petitioners, at least there are two reasons to think that the case lodged against the petitioners is with mala fide intention. At this stage, it requires to be pointed out that while an application for quashing the proceedings under Section 482 of the Cr.P.C. or under Article 226 of the Constitution is made, the Hon'ble Supreme Court has laid down specific guidelines. It is the settled proposition that where the allegations made in the FIR or in the complaint, even if they are taken at its face value and accepted in entirety, prima facie do not constitute any offence or make out a case against the accused, the proceedings are liable to be quashed. Similarly, where a criminal proceedings is initiated manifestly with Crl.M.C.4690/2021 9 malafide and or where the proceedings is maliciously instituted with ulterior motive for wreaking vengeance of the accused, with a view to spite him due to personal and private grudge, then also the proceedings are liable to be quashed. _[_ See the decision in State of Bihar Etc. Etc v. P.P. Sharma, IAS and another _(AIR 1991 SC 1260)]._ 9. Evidently, the 1[st] petitioner is the trustee of the said old age home. It is claimed that it is an old age home run by the daughter, son-in-law and a grand daughter of the petitioners which is recognised by the Board of Control for Orphanages and Other Charitable Homes, Kerala. The 1[st] petitioner is the Treasurer or the Managing Trustee of the Trust. It is claimed that the 2[nd] petitioner has no role at all in the running of the Trust. Whatever it may be, it is not disputed that the said Lilly Lonachan, a 74 year old lady, who was a returnee from abroad and was a spinster, had joined the Trust on 01.02.2012 and had been under the care and treatment of the Trust till she died on 03.01.2013. It is stated that she was chronically diabetic and was also suffering from hypertension and was under treatment. After joining the institution, since her health had deteriorated, she had to be put to hospital treatment frequently. It is stated that she was Crl.M.C.4690/2021 10 under insulin support and required frequent hospitalisation. According to the petitioners, at first she was taken to a nearby hospital and then to Lourdes Hospital, Ernakulam where she underwent cardiovascular surgery, after her discharge she was taken back to the Trust, then again some health issues occurred. She was then taken to Dharmagiri Hospital, Kothamangalam, then to the Medical Mission Hospital, Kolencherry, Good Samaritan Hospital, Pazhanganad, Lourdes Hospital, Ernakulam etc. At last, she died of heart attack at Medical College Hospital, Kolencherry and her body was released to the near relatives for burial. Then the said Rajeena Lonachan, the sister of Lilly Lonachan and others made a representation and demanded the petitioners to refund the amount of Rs.10 lakhs which was deposited by Lilly Lonachan at the time of her admission, they also had a case that the personal belongings including ornaments worn by Lilly Lonachan were not returned. After sending lawyer notice, reply notice etc. the said Rajeena Lonachan and others filed a suit as O.S. 60/2014 before the Sub Court, Perumbavoor. But Annexure-A17 judgment indicates that the suit was not prosecuted by Rajeena Lonachan and ultimately it was dismissed for default on 15.10.2018. The learned counsel Crl.M.C.4690/2021 11 for the petitioners submits that no one has taken up this finding and that has become final. 10. Annexure-A2, copy of the plaint in OS 60/2014 of the Sub Court, initially it was filed as forma pauperis; it clearly indicates that Rajeena Lonachan the defacto complainant had sought a decree for realising an amount of Rs.19,53,400/- which includes the sum of Rs.10 lakhs paid by her sister at the time of admission in the Trust and also the value of various gold ornaments, value of the air conditioner, refrigerator, juice machine, mobile phone etc. Initially, that plaint was presented as an indigent O.P. Thereafter it was taken on file as OS 60/2014. By AnnexureA17 judgment, that suit was dismissed for default against which no appeal has been preferred nor attempts were made to restore the suit under Order IX CPC. That decree has become final. 11. As rightly pointed out by the learned counsel for the petitioners, in Annexure-A13 complaint also, it is alleged that apart from the sum of Rs.10 lakhs deposited at the time of her admission in the Trust, the accused persons who are the petitioners, had misappropriated various gold ornaments worn by Lilly Lonachan and that was how offence under Crl.M.C.4690/2021 12 Sections 406, 409, 420 IPC etc. have been alleged against the petitioners. 12. So long as the civil court had considered and disposed of the claim, even though it was not a disposal on merits, still there is no meaning in taking the matter to the criminal court without prosecuting the same through the civil court. Annexure A13 complaint was filed before the Court while the suit was pending before the Sub Court. 13. Secondly, and more importantly, the said Rajeena Lonachan had earlier moved a complaint before the Judicial First Class Magistrate's Court-I, Perumbavoor, which was taken on file as a private complaint, CMP 2386/2018. There also almost similar allegations were raised and offences under Sections 406, 420, 404, 120B, 427 read with 34 of the IPC was alleged. That complaint was preferred on 30.09.2013. After conducting preliminary enquiry by the learned Magistrate under Sections 200 and 202 Cr.P.C, by Annexure-A12 order dated 3.9.2014 the complaint was dismissed under Section 203 Cr.P.C. In the said order the Court observed thus: “The case of the complainant is that the accused were not willing to perform the conditions in the agreement executed by the sister of the complainant. The agreement was not Crl.M.C.4690/2021 13 produced. The complainant was not a party to the agreement. Even if it is admitted that an agreement was executed as alleged by the complainant, no criminal offence is made out. The non performance of the contract does not always make out a criminal offence.” On that premise the complaint was dismissed by the court. According to the learned counsel, ignoring the same Annexure-A13 complaint was preferred before the Judicial First Class Magistrate, Kuruppampady and the complaint was got forwarded to the police for investigation and that was how Annexure-A14 was registered and the final report was laid. 14. I have reservations about the observations made by the learned Magistrate for the dismissal of the complaint; it is pertinent to note that the learned Magistrate has not considered the allegation of entrustment of the gold ornaments. It is the specific contention of the defacto complainant that the gold ornaments worn by deceased Lilly Lonachan were not returned after her death. Whatever it may be, as mentioned earlier, Annexure-A17 judgment of the Sub Court covers this aspect also and in the suit filed by the said Rajeena Lonachan the consideration, that is the price of the gold ornaments, also was claimed and that suit was dismissed for default and that decree has become final. Crl.M.C.4690/2021 14 15. The learned counsel for the petitioners submitted that the second complaint, Annexure-A15 is barred by Section 300 of the Cr.P.C. But that cannot be agreed to. There is no trial and disposal of the earlier case. Anenxure-A12 is a dismissal under Section 203 Cr.P.C. without trial. Therefore, Section 300 cannot be attracted. Whatever it be, Annexure-A13 is the repetition of Annexure-A11 which was considered earlier. 16. On these considerations, it is clearly an abuse of process of court and the learned counsel for the petitioners is justified in contending that the complaint has been filed without good faith. Therefore, entire proceedings in Annexure-A15 are quashed and the petitioners shall stand exonerated. The Crl.M.C. is allowed as above. **Sd/K.HARIPAL JUDGE** okb/13.3.22 //True copy// P.S. to Judge Crl.M.C.4690/2021 15 ## **APPENDIX OF CRL.MC 4690/2021** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|A TRUE COPY OF THE LAWYER NOTICE ISSUED BY THE| ||OLD AGE HOME TO THE 2ND RESPONDENT AND OTHERS| ||DATED 22.12.2014.| |Annexure A2|A TRUE COPY OF THE INDIGENT OP 3/13 ON THE| ||FILE OF SUB COURT PERUMBAVOOR DATED 29.7.13.| |Annexure A3|A TRUE COPY OF THE WRITTEN STATEMENT FILED BY| ||THE PETITIONER AND OTHERS BEFORE THE SUB COURT| ||PERUMBAVOOR IN OS NO.60/14 DATED NIL.| |Annexure A4|A TRUE COPY OF THE VISITORS DIARY OF VALARIYIL| ||IYPE MEMORIAL TRUST OLD AGE HOME FROM AUGUST| ||2011.| |Annexure A5|A TRUE COPY OF THE STATEMENT OF PAYMENT OF OLD| ||AGE HOME SHOWING RECEIPT OF RS.5000/- EVERY| ||MONTH.| |Annexure A6|A TRUE COPY OF THE COMPLAINT FILED BY THE| ||PETITIONER BEFORE THE KURUPPUMPADY POLICE| ||DATED 23.10.13.| |Annexure A7|A TRUE COPY OF THE FIR IN CRIME NO.2212/13 OF| ||KURUPPUMPADY DATED 5.12.13 REQUESTED AGAINST| ||THE 2ND RESPONDENT HEREIN, BASIL JOY ETC.| |Annexure A8|A TRUE COPY OF THE COMMON ORDER IN| ||CRL.M.C.NO.6198/13 AND CRL.MC NO.6560/13 OF| ||THE HONOURABLE COURT DATED 18.2.15.| |Annexure A9|A TRUE COPY OF THE COMPLAINT FILED BY RAJEENA| ||LONACHAN AS HRMP NO.2296/13 ERNAKULAM BEFORE| ||THE HUMAN RIGHTS COMMISSION DATED 20.3.13.| |Annexure A10|A TRUE COPY OF THE COMPLAINT FILED BY THE 2ND| ||RESPONDENT BEFORE THE KERALA WOMEN COMMISSION| ||ERNAKULAM ON THE VERY SAME ALLEGATIONS FOR| ||WHICH NOTICE WAS ISSUED TO THE PETITIONER AND| Crl.M.C.4690/2021 16 OTHERS FROM THE KERALA WOMEN COMMISSION DATED 1.6.2013. - Annexure A11 A TRUE COPY OF THE COMPLAINT THE CMP NO.2386/2013 FILED BY THE 2ND RESPONDENT HEREIN AGAINST THE PETITIONER AND LISSY JOHN DATED 30.9.13. - Annexure A12 A TRUE COPY OF THE ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT PERUMBAVOOR IN CMP NO.2386/2016 DATED 3.9.2014 - Annexure A13 A TRUE COPY OF THE CMP NO.16/2015 FILED BY THE 2ND RESPONDENT BEFORE THE JFMC COURT KURUPPUMPADY DATED 20.1.15. - Annexure A14 A TRUE COPY OF THE FIR IN CRIME NO.227/15 OF KURUPPUMPADY POLICE STATION DATED 5.2.15. - Annexure A15 A CERTIFIED COPY OF THE CHARGE IN CRIME NO.227/15 OF KURUPPUMPADY POLICE STATION DATED 31.1.2020. - Annexure A16 A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE CHAIRPERSON OF OLDAGE HOME DATED NIL. - Annexure A17 A TRUE COPY OF THE JUDGMENT IN OS NO.60/2014 ON THE FILE OF SUB COURT, PERUMBAVOOR DATED 15.10.2018. - Annexure A18 A TRUE COPY OF THE MEDICAL CERTIFICATE OF LILLY LONACHAN ISSUED FROM MEDICAL COLLEGE HOSPITAL KOLENCHERY DATED 3.1.2013. - Annexure A19 A TRUE COPY OF THE RECEIPT ISSUED BY AUGUSTINE AND OTHERS IN FAVOUR OF THE PETITIONER'S OLD AGE HOME DATED 4.1.13. - Annexure A20 A TRUE COPY OF THE RECEIPT ACKNOWLEDGING THE VALUABLES OF LILLY LONACHAN FROM HER ROOM IN THE OLD AGE HOME DATED 4.2.2013.