Mariyamma and Others v. Roman Catholic Diocese of Thalassery and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 Crl.MC.No. 2571 of 2008() ------------------------CC.25/2008 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER: ------------ 1. MARIYAMMA, AGED 53 YEARS, W/O LATE M.ABDULL KUNHI. 2. HANEEFA, AGED 32 YEARS, S/O LATE M.ABDULLA KUNJI ALIAS ABDULLA. 3. M.A. ABDUL RAHIM ALIAS MOHAMMED RAHIM, S/O LATE M.ABDULLA KUNJI ALIAS ABDULLA. 4. M.A. ABDUL NAZIR, AGED 30 YEARS, S/O LATE M.ABDULLA KUNJI ALIAS ABDULLA. 5. M.A. ASSIYA, AGED 29 YEARS, D/O LATE M.ABDULLA KUNJI ALIAS ABDULLA 6. M.A. MAIMOONA, AGED 27 YEARS, D/O LATE M.ABDULLA KUNJI ALIAS ABDULLA 7. M.A. RAHMATH, AGED 25 YEARS, D/O LATE M.ABDULLA KUNHI ALIAS ABDULLA. 8. M.A. SUMAYA, AGED 23 YEARS, D/O LATE M.ABDULLA KUNHI ALIAS ABDULLA. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: ------------- 1. ROMAN CATHOLIC DIOCESE OF THALASSERY, REPRESENTED BY THE PRESENT PROCURATOR REV. FATHER SEBASTIAN, AGED 44 YEARS, 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER SRI.BECHU KURIAN THOMAS FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.2571 of 2008 ---------------------------------------Dated this the 15[th] day of September 2008 ## **O R D E R** Petitioners are accused 1 to 5 and 7 to 9 and they face indictment along with the sixth accused in a prosecution for offences punishable under Sections 120B and 420 I.P.C. Accused 1 to 9 are the widow and children of deceased Abdullakunju who expired in 1997. An extent of 1.90 acres of land which was acquired by Abdullakunju prior to his death was sold by accused 1 to 9 in favour of the de facto complainant that is the first respondent herein as per a sale deed dated 7/4/2004. The same was for a consideration of Rs.10,00,000/-. The nine accused persons claimed that they have rights in the property as the legal heirs of deceased Abdullakunju. In the document they vouched that the property belongs to them exclusively and that no other person has any right over the land. They also undertook to indemnify and compensate the buyer in the event of any defect in their title. After the document was executed on 07/04/2004, one Abdul Rahiman, brother of the deceased Abdullakunju filed a suit in 2005 as O.S.No.144/2005. In that Crl.M.C.No.2571/08 2 suit, he claimed that when Abdullakunju expired in 1997, the mother of Abdullakunju was alive. One sixth of the share in the property of Abdullakunju had devolved on his mother. Mother expired in 2000 and the said one sixth share, contended Abdul Rahiman, had devolved on him on her death in 2000. The suit was filed claiming partition of one sixth share which Abdul Rahiman allegedly had inherited through his mother. In that suit, the de facto complainant was a defendant. The suit was contested and on 19/12/2005, a decree for partition was granted in favour of the plaintiff Abdul Rahiman. Further steps were taken by the said Abdul Rahiman to execute the Decree for Partition. Though the accused persons promised to settle the claims of the de facto complainant, no settlement was reached. At this stage, the de facto complainant came to the Magistrate with a complaint on 15/10/2007 alleging commission of the offences punishable under Sections 120B and 420 I.P.C by accused 1 to 9. Cognizance has been taken by the learned Magistrate. The petitioners along with the sixth accused now face the possibility of such an indictment against them. They have come to this court with a prayer that the prosecution Crl.M.C.No.2571/08 3 launched against them on the basis of the private complaint filed by the de facto complainant and referred to the police under Section 156(3) Cr.P.C - cognizance in which was taken on the basis of the final report submitted after investigation may be quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. 2. The learned counsel for the petitioners submits that even if the entire allegations were accepted, what is revealed is only a civil dispute consequent to defect in the exclusive title claimed by accused 1 to 9. Accused 1 to 9 were not aware of any such fractional rights which the brother of Abdullakunju had in the property. Even the de facto complainant, who is a codefendant along with the nine accused, was fully aware of want of contumaciousness on the part of the accused persons and that is why he did not move his little finger against the petitioners and 6[th] accused till 15/10/2007 though the decree for partition was suffered with the de facto complainant on the party array as early as on 19/12/2005. At worst, what is revealed is only a civil liability and it is a traversity of justice to compel the accused persons to face indictment for the criminal offences under Crl.M.C.No.2571/08 4 Sections 120B and 420 I.P.C. In these circumstances, it is prayed that the interests of justice warrants invocation of the extraordinary inherent jurisdiction to bring to premature termination the prosecution against the petitioners and the sixth accused. It is urged that the bona fides of the petitioners will be revealed clearly from the fact that the de facto complainant had acted on a legal heirship certificate issued by competent authority and there is not even an allegation that the accused had colluded with the official who issued legal heirship certificate. There was no wilful suppression. There was no fraudulent deception at all involved. At worst, it was a common error committed by the de facto complainant, the accused persons as also the official who issued the legal heirship certificate. In any view of the matter, it would be unjust to attempt to fasten criminality on the accused persons on the basis of this innocuous circumstance that the rights, if any, of Abdul Rahiman in the property was not revealed voluntarily by the accused persons when the transaction was entered into. 3. I have considered all the relevant inputs. The mere fact that an alternative remedy under civil law is available does Crl.M.C.No.2571/08 5 not and cannot obliterate culpable liability for any criminal offence committed by the accused persons. There can be no dispute on that proposition. It is also well settled that it is for the buyer to verify title of the seller at the time when the transaction is entered into. The alleged misrepresentation or suppression of facts is the non-disclosure of the fractional rights which Abdul Rahiman claimed and sought to enforce through a civil suit. There is significant absence of materials to show that the indictees (accused 1 to 9) had knowledge of the claim of the said Abdul Rahiman or that they had wilfully suppressed or not disclosed that information to the de facto complainant. The totality of circumstances reveal clearly to me that there cannot be a valid allegation at all that the accused persons are guilty of fraudulent and deliberate suppression of information about the fractional rights which Abdul Rahiman later claimed - at the time of the transaction on 07/04/2004. The fact that the de facto complainant was a party to the suit which was filed by the said Abdul Rahiman in early 2000 and that though the decree for partition was suffered by the de facto complainant also on 19/12/2005 and the de facto complainant waited till 15/10/2007 Crl.M.C.No.2571/08 6 to lodge this criminal complaint do also suggest absence of contumacious culpable responsibility for the accused persons. The fact that no allegation of collusion is raised between the official who issued the legal heirship certificate and the accused persons is one more indication to suggest absence of culpable liability for the accused persons. 4. Having considered all the relevant circumstances, I am certainly persuaded to agree that this is an eminently fit case where powers of this court under Section 482 Cr.P.C - the extraordinary inherent jurisdiction can and ought to be invoked in favour of the accused persons to quash the prosecution initiated against them. The learned counsel for the petitioners rightly places reliance on the decision in **Hridaya Ranjan Prasad Verma and Others v. State of Bihar and Another [(2000)4 SCC 168]** to contend that the mere breach of a contract cannot ipso facto lead to the conclusion that an offence of cheating has been committed. In the total absence of any materials to even remotely indicate that the accused persons had any contumacious culpable intention when they entered into the transaction of sale on 07/04/2004 coupled with the subsequent Crl.M.C.No.2571/08 7 conduct of the de facto complainant when he realised the alleged fraud makes it absolutely safe to assume that the accused persons did have no culpable or contumacious responsibility. Their civil liability to compensate the de facto complainant which is accepted and acknowledged in the document may of course be enforced otherwise; but they cannot be held liable to face a criminal prosecution on the allegations raised. 5. In the result, a) This Crl.M.C is allowed. b) C.C.No.25/08 pending before the learned Chief Judicial Magistrate, Kasargod against the petitioners as well as the 6[th] accused is hereby quashed. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.2571/08 8 Crl.M.C.No.2571/08 9 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008