Kunhiethu, Safiya and Femina v. State of Kerala and Narayanan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941 Crl.MC.No.2456 OF 2013 AGAINST THE JUDGMENT IN CP 20/2011 DATED 15-02-2013 OF HIGH COURT OF KERALA CC 8/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, PERAMBRA ## PETITIONERS/ACCUSED: - 1 KUNHIETHU AGED 60 YEARS S/O AMMED, VARIYAM PUTHIYOTTIL, PERMBRA-673 525, KOILANDY, KOZHIKODE DISTRICT. - 2 SAFIYA AGED 48 YEARS W/O KUNHIETHU, VARIYAM PUTHIYOTTIL, PERMBRA-673 525, KOILANDY, KOZHIKODE DISTRICT. 3 FEMINA, AGED 28 YEARS D/O KUNHIETHU AND W/O AFSAL, PADINJARE MANDODI HOUSE, ELATHUR P.O., ELATHUR AMSOM, ERANJIKKAL DESOM, KOZHIKODE DISTRICT. BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN ## RESPONDENTS/STATE & COMPLAINANT: - 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. - 2 NARAYANAN NAIR, AGED 53 YEARS, S/O MADHAVI AMMA, CHENIYAKUNNUMMAL HOUSE, ERAVOOR AMSOM, KALLOD DESOM P.O. PERAMBRA-673 525, KOILANDY TALUK, KOZHIKODE DISTRICT. R1-2 BY ADV. SRI.ARUN MATHEW VADAKKAN R1 BY ADV. SRI.K.P.SUDHEER ## K.B.UDAYAKUMAR, SR. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2456 of 2013 2 ## **ORDER** The petitioners and the 2[nd] respondent are the accused and the complainant respectively in C.C.No.8/2013 on the file of the Judicial First Class Magistrate Court-I, Perambra. The 1[st] accused is the Managing Director of Malabar Cash Crops Limited, a company registered under the Companies Act, having Registered Office at N.P.3/10, Payyoli Road, Perambra, Kalpathur P.O., Kozhikode. The 3[rd] petitioner is the Director of the said company. The minutes of the Board Meeting is produced as Annexure-I. 2. The 2[nd] petitioner is the wife of the 1[st] petitioner while the 3[rd] petitioner is the daughter of petitioners 1 & 2. The 3[rd] petitioner is one of the Directors of Malabar Cash Crops Limited. For the Company, the 1[st] petitioner mortgaged his property and the Crl.M.C.No.2456 of 2013 3 amount obtained on such mortgage, which was to the tune of several lakhs of rupees was appropriated for the functioning of the company. Thereafter, an agreement was executed between the petitioners 1 & 3 dated 25.07.2006. The 2[nd] respondent was one of the two witnesses in the agreement. The agreement dated 25.07.2006 is produced as Annexure-II. 3. The case of the petitioners is that 2[nd] respondent is a real estate broker and money lender. The property ad-measuring 16 Ares equal to 39[1] /2 cents owned by the petitioners and Muhammed Fazil, son of the 1[st] and 2nd petitioners as per settlement deed No.2070/1994 on the file of the S.R.O., Koorachundu, was agreed to be sold in October, 2008 to the 2[nd] respondent or his nominee. Accordingly, the 2[nd] respondent with his express consent, as per the instruction of the 2[nd] respondent the property was sold to one Riju George by two sale deeds, Crl.M.C.No.2456 of 2013 4 namely, the sale deed No.686/2010 of the S.R.O, Koorachundu by which the petitioners sold their 3/4 right in the property and the sale deed No.1880/2010 of the S.R.O., Koorachundu by which the minor Muhammed Fazil's 1/4 right was sold by the 1[st] petitioner as his guardian with permission under the Guardian and Wards Act of the District Court, Kozhikode in O.P.No.189/2009. The 2[nd] respondent is a witness in the sale deed No.1880/2010. Copy of that deed is produced as Annexure-IV. 4. In Annexure-IV, there is a specific case reference to the agreement for sale in favour of the 2[nd] respondent with details thereof and it was specifically stated that the sale deed was executed in favour of Riju George with the express consent of the 2[nd] respondent and he signed it as a witness. In this connection, I have gone through the Annexure-IV document which was admittedly executed on Crl.M.C.No.2456 of 2013 5 10.07.2010 and the documents contains the signature of the 2[nd] respondent named Narayanan Nair. 5. According to the petitioners, by suppressing the fact relating to Annexure-IV, the 2[nd] respondent has lodged a false and vexatious complaint before the Judicial First Class magistrate's Court-1, Perambra against the petitioners alleging offences punishable under Sections 417, 420, 406 and 506(2) r/w Section 34 of the IPC. The learned Magistrate took cognizance and issued summons to the petitioners. True copy of the complaint dated 12.12.2012 is produced as Annexure-V. 6. According to the petitioners, AnnexureV complaint is absolutely false and baseless which amounts only to sheer abuse of the process of the court. According to the petitioners, the 2[nd] respondent lodged AnnexureV complaint against the petitioners only for Crl.M.C.No.2456 of 2013 6 his enmity towards the 1[st] petitioner in relation to the functioning of the Company. In addition to Annexure-V complaint, the 2[nd] respondent has instituted O.S.No.74/2013 before the Sub Court, Koilandy against the 1[st] petitioner for specific performance of agreement or for return of money to the tune of Rs.4 lakhs together with 18% interest from the 1[st] petitioner. The true copy of the plaint in O.S.No.74/2013 dated 13.03.2013 is produced and marked as Annexure-VI. 7. Annexure-VI would state that the property in dispute was agreed to be sold to the 2[nd] respondent on 29.10.2008. As per the agreement, the petitioner accepted Rs.2,00,000/- from the 2[nd] respondent and since one of the executant was a minor, O.P.No.189/2009 was filed before the District Court and obtained an order. Before obtaining the order in the said O.P., without consent of Crl.M.C.No.2456 of 2013 ## 7 the petitioners and the 2[nd] respondent, this property has been sold to another person. When the property was alleged to have transferred in favour of the strangers, a compromise document was entered into between the parties and there was an agreement to sell the property to the 2[nd] respondent. Accordingly, Rs.2,00,000/- was again advanced by the 2[nd] respondent. In total, an amount of Rs.4,00,000/- was received by the 1[st] petitioner and an agreement was executed on 13.07.2010. There was an agreement to execute the sale deed of the same on or before 15.10.2010. But, according to the 2[nd] respondent, the 1[st] petitioner has not executed the sale deed in favour of the 2[nd] respondent. Under these circumstances, he has filed the a civil suit as O.P.74/13 before the Sub Court, Koyilandi for specific performance of contract or in the alternative to get back the advance amount from the 1[st] petitioner. Crl.M.C.No.2456 of 2013 8 8. The learned counsel for the petitioners argued that the question involved in this case is purely a civil matter and the cognizance which was taken by the learned Magistrate is not correct. In fact, the Annexure-IV would state that the alleged transaction was effected with the knowledge of the 2[nd] respondent, who has filed a criminal complaint before the Magistrate Court. In addition to that, he has initiated civil proceedings to get specific performance of contract. The transaction between the 1[st] petitioner and the 2[nd] respondent was purely of civil nature and it was related to the sale of the property. There is no evidence to prove that at the inception of the transaction, there was an element of cheating on the side of the 1[st] petitioner. Moreover, 2[nd] respondent was a witness and he was signatory to that Annexure IV document. So, the intention of the 2[nd] respondent is only to pressurise the Crl.M.C.No.2456 of 2013 9 petitioners either to execute the sale deed in favour of the 2[nd] respondent or to get back the advance amount already paid by the 2[nd] respondent. 9. The definite case of the petitioners is that the 2[nd] respondent is entitled to get a relief for specific performance and the same can be adjudicated in the Civil Court, for which the 2[nd] respondent has already instituted Annexure-VI suit against the 1[st] petitioner herein. Moreover, the 1[st] petitioner is ready and willing to defend the suit and to go by a decree that may be passed in that suit. If at all there is any claim between the 2[nd] respondent and the petitioners, the same is purely a civil matter, which has nothing to do with any criminal prosecution. 10. Further, the learned counsel for the petitioners contended that 2[nd] respondent lodged Annexure-V complaint only for exerting pressure Crl.M.C.No.2456 of 2013 10 of criminal prosecution fraudulently on the petitioners which is only an abuse of the process of the court. 11. Now the question to be considered is whether there is any ground to quash the cognizance taken by the Judicial First Class Magistrate Court-I. I have gone through the relevant documents produced by the petitioners and found that the matter in dispute is purely civil in nature and there is no element of cheating as contemplated. Hence, Sections 419 and 420 is attracted in this case. 12. It has held in _**Sarabjit Singh v. State of Punjab and others**_ [2013 KHC 4459] that a mere failure to deep promise subsequently cannot be presumed as an act leading to cheating. It is trite that to hold the person guilty of the offence of cheating it has to be shown that his intention was dishonest at the time of making such promise an such a dishonest Crl.M.C.No.2456 of 2013 **==> picture [12 x 9] intentionally omitted <==** intention cannot be inferred for a mere fact that he could not subsequently fulfil the promise. It is further held that FIR lodged on the basis of an agreement to sell pending civil litigation and no evidence has been produced to show that at the inception of execution of agreement, there was inducement. In the absence of material to support the above fact, the ingredients of crime will not stand. 13. In fact, he has admitted that it is only a money transaction as per the agreement and the 1[st] petitioner was alleged to have accepted Rs.4,00,000/- as an advance. The remedy lies before the civil court and not before the criminal court and no element of cheating is established. Therefore, I find that the entire proceedings initiated by the Judicial First Class Magistrate's Court, Perambra is only to be quashed. In the result, the Crl.M.C is allowed. The Crl.M.C.No.2456 of 2013 **==> picture [13 x 9] intentionally omitted <==** entire proceedings pending before the Judicial First Class Magistrate's Court, Perambra is hereby quashed. sd/- **ANNIE JOHN, JUDGE** **SMA/RKM** Crl.M.C.No.2456 of 2013 13 ## **APPENDIX** ## PETITIONERS' EXHIBITS: TRUE COPY OF THE MINUTES OF BOARD MEETING DATED 22.2.2013. ANNEXURE I TRUE COPY OF THE MINUTES OF BOARD MEETING DATED 22.2.2013. ANNEXURE II TRUE COPY OF THE AGREEMENT DATED 25.7.2006. ANNEXURE III TRUE COPY OF THE JUDGMENT DATED 15.2.2013 IN C.P.NO.20/11 OF THIS HONOURABLE COURT. ANNEXURE IV TRUE COPY OF THE SALE DEED DATED 10.7.2010. ANNEXURE V TRUE COPY OF THE COMPLAINT IN C.C.NO.8/2013 BEFORE THE JFMC-I, PERAMBRA. ANNEXURE VI TRUE COPY OF THE PLAINT IN O.S.NO.74/2013 DATED 13.3.2013 BEFORE THE SUB COURT, KOILANDY. RESPONDENTS' EXHIBITS: ANNEXURE R2(a): TRUE COPY OF ORDER DATED 11.06.2010 IN O.P. NO. 189/2009 PASSED BY DISTRICT COURT, KOZHIKODE. ANNEXURE R2(b): TRUE COPY OF THE COMPLAINT DATED 10.07.2010 SUBMITTED BY THE PETITIONER BEFORE THE SUB REGISTRAR'S OFFICE, KOORACHUNDU. ANNEXURE R2(c): TRUE COPY OF AGREEMENT DATED 13.07.2010 EXECUTED BETWEEN 2ND RESPONDENT AND 1ST PETITIONER. ANNEXURE R2(d): TRUE COPY OF LAWYER NOTICE DATED 25.11.2012 ISSUED ON BEHALF OF THE FIRST PETITIONER TO THE SECOND RESPONDENT. /True Copy/ PA to Judge.