Marry Raveendran v. State of Kerala and Robi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935** ## **Crl.MC.No. 3372 of 2013** **--------------------------AGAINST THE ORDER IN CRL.MC.NO. 1157/2013 OF 1ST ADDL. SESSIONS COURT,THIRUVANANTHAPURAM DATED 07-06-2013 ....... CRIME NO. 650/2013 OF NEMOM POLICE STATION , THIRUVANANTHAPURAM** **.......** ## **PETITIONER/ACCUSED:** **------------------------------------** **MARRY RAVEENDRAN, AGED 53 YEARS, D/O. MARIAMMA, CHRIST BHAVAN, PLAKKUZHI, UPANIYOOR, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENTS/STATE AND DE FACTO COMPLAINANT:** **--------------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE SUB INSPECTOR OF POLICE, NEMOM POLICE STATION, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. ROBI,** **S/O. JOSEPH, R.S.BHAVAN, KALLUVILA, KARICHAL DESOM, KANJIRAMKULOM VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 524.** **R1 BY PUBLIC PROSECUTOR SRI.N.SURESH R2 BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 3372 of 2013** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **--------------------------------------------** **ANNEXURE A- PHOTOCOPY OF THE AGREEMENT DATED 28-11-2009 EXECUTED BETWEEN THE 2ND RESPONDENT AND PETITIONER.** **ANNEXURE B- PHOTOCOPY OF THE AGREEMENT DATED 10-6-2010.** **ANNEXURE C- PHOTOCOPY OF THE LEGAL NOTICE DATED 02-04-2013.** **ANNEXURE D- PHOTOCOPY OF THE REPLY NOTICE DATED 10-04-2013.** **ANNEXURE E- CERTIFIED COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT-I, NEYYATTINKARA.** **ANNEXURE F- CERTIFIED COPY OF FIR IN CRIME NO. 650/2013 OF NEMOM POLICE STATION.** **ANNEXURE G- PHOTOCOPY OF THE ORDER DATED 07-06-2013 IN CRL.M.C.NO. 1157/2013 OF THE COURT OF SESSIONS, THIRUVANANTHAPURAM.** **ANNEXURE H- PHOTOCOPY OF PLAINT IN O.S.NO. 602/2013 OF THE SUBORDINATE JUDGES COURT, THIRUVANANTHAPURAM.** **RESPONDENT(S)' ANNEXURES:** **----------------------------------------------N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.3372 of 2013 .................................................. Dated this the 20[th] day of February, 2014. ## **O R D E R** This is an application filed by the accused in Crime No.650/2013 of Nemam police station to quash the proceedings under Section 482 of the code of Criminal Procedure. 2. It is alleged in the petition that the petitioner is in absolute ownership and possession of 2.32 ares of property with a building therein comprised in R.Sy.Nos.37/10-6 and 37/10/2-1 of Kalliyoor village, Thiruvananthapuram Taluk . On 28.11.2009 the second respondent and the petitioner entered into Annexure A agreement for sale after receiving advance amount. The petitioner entered into Annexure A agreement in order to meet the educational expense of her son who joined for Commercial Pilot Training Course at Government Aviation Training Institute. The second respondent then approached the petitioner and told that the balance amount will be paid by September, 2010 and the sale deed will have to be executed on that day. As per the request of the second respondent, the petitioner entered into Annexure-B fresh agreement for sale. Crl.M.C.No.3372 of 2013 2 The second respondent after obtaining the title deed and other revenue records, failed to pay the balance sale consideration and did not take steps to get the documents executed through the petitioner. So, on 2.4.2013 the petitioner issued Annexure C legal notice asking the second respondent to pay the balance amount and get the documents executed or return the title deeds of the property for which the second respondent sent Annexure D reply. Thereafter he filed Annnexure E complaint against the petitioner before the Judicial First Class Magistrate Court-I, Neyyatinkara, which was forwarded to the police for investigation under Section 156(3) of the Criminal Procedure Code and Annexure F First Information Report was registered as Crime No.650/2013 of Nemam police station alleging an offence under Section 420 of the Indian Penal Code. The allegations in the complaint do not constitute an offence of cheating and it is only an abuse of process of the court. So the petitioner has no other remedy except to approach for intervention of this Court. Hence, the petitioner has filed this petition seeking the following reliefs: For these and other grounds to be urged at the time of hearing, it is most humbly prayed that this Honourable Court may be plesed to quash Annexure-E complaint and Annexure-F FIR, Crime No.650/2013 of Nemon Police Station, in the interest of 3 Crl.M.C.No.3372 of 2013 justice. 3. Heard the counsel for the petitioner, counsel for the second respondent and the learned Public prosecutor. 4. The counsel for the petitioner submitted that even going by the allegations and also conduct of the parties, it is seen that the petitioner was always ready and willing to perform his part of the contract and there was no intention to cheat on his part. Further , after filing of this complaint, the second respondent has already filed Annexure H for return of the advance amount paid before the Sub Court, Thiruvananthapuram which is pending as O.S.No.602/2013. So it is only an abuse of process of court . 5. On the other hand, the counsel for the second respondent submitted that on going through the allegations, it will be seen that there is an element of cheating made out and it is not proper to quash the proceedings at this stage. 6. It is settled law that the court should not normally quash the proceedings invoking the power under Section 482 of the Code of Criminal Procedure during the crime stage itself so as to scuttle the investigation in a genuine prosecution unless the court is fully convinced that even if the entire Crl.M.C.No.3372 of 2013 4 allegations in the complaint are admitted to be true in spite of that no ingredients of the offences are made out to prosecute the accused in this case. 7. In this case, it is seen from the complaint filed that originally an agreement to sell was executed and thereafter parties have again entered into another agreement to sell in respect of the same transaction. Further, it is also seen from the documents produced that the petitioner herein had sent a notice demanding the complainant in the case i.e., the second respondent to pay the balance sale consideration and get the document executed and in case he does not want the property, return the title deeds and receive back the advance amount as well. Further, the second respondent has already filed a suit for recovery of the amount alone and not for enforcing the contract for specific performance. So, all these things will go to show that there was no dishonest intention on the part of the accused at the time of entering the contract. Further, merely because he did not execute the document , that will not amount to offence of cheating though it may sometimes amount to breach of contract. So if it is only a breach of contract, then there is no question of any offence of cheating arises. In the Crl.M.C.No.3372 of 2013 5 decision reported in **George Thomas v. State of Kerala** (2012 (1) KLT 876) this Court has held that failure to execute a sale deed in compliance of agreement for sale would not constitute an offence under Section 420 of the Indian Penal Code. So from the circumstances also it cannot be said that there was a dishonest intention not to execute the document at the time when both the agreement for sale was executed between the parties established or could not be inferred as well. So under the circumstances, no purpose will be served by proceeding with the investigation and it is a fit case to invoke the power under section 482 of the Code of Criminal Procedure to quash further proceedings in Crime No.650/2013 of Nemam police station,Thiruvananthapuram District. So, the application is allowed and further proceedings in Crime No.650/2013 of Nemam police station, Thiruvananthapuram District against the petitioner is quashed. Communicate this order to the concered court to enquire the concerned police station for further action. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.3372 of 2013 6