Mathew Kurian, Bibin, Satheesh Paul C. v. State of Kerala and Jacob G. Punnachallil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932** ## **Crl.MC.No. 5065 of 2010()** **------------------------CRIME No. 553/2010 OF MULAMTHURUTHY POLICE STATION, ERNAKULAM DISTRICT** **....................** ## **PETITIONER(S):** **-----------------------** **1. MATHEW KURIAN, AGED 66 YEARS,** **S/O. KURIAN, NJALIYATH HOUSE, KADUNGAMALAM P.O., THIRUVANKULAM.** **2. BIBIN, AGED 31 YEARS, S/O. MATHEW KURIAN, KADUNGAMALAM P.O., THIRUVANKULAM.** **3. SATHEESH PAUL C., AGED 33 YEARS, S/O. PAUL, CHERIKKUMKUZHIYIL HOUSE, MULANTHURUTHY P.O., MULANTHURUTHY.** **BY ADV. SRI.SAJIV.C.K.** **RESPONDENT(S):** - **-----------------------** **1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MULANTHURUTHY POLICE STATION, ERNAKULAM DISTRICT.** **2. JACOB G.PUNNACHALLIL, AGED 55 YEARS, PUNNACHALLIL HOUSE, THIRUVANKULAM P.O., ERNAKULAM-682 305.** **PUBLIC POSECUTOR SRI. K.J. MOHEMMED ANZAR FOR R1 ADV. SRI.N.J.JOHNSON FOR R2** **THIS CRIMINAL MISC. CASE HAVING HAVING BEEN FINALLY HEARD ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **kp** ## **CRL.MC. No. 5065 OF 2010** ## **APPENDIX** ## **PETITIONERS' EXHIBIT: NIL** ## **RESPONDENTS' ANNEXURES AND OTHER ANNEXURES:** **ANNEXURE 1: CERTIFIED COPY OF THE FIR IN CRIME No.553/2010 OF MULANTHURUTHY POLICE STATION.** - **ANNEXURE 2: TRUE COPY OF THE COMPRMISE PETITION PREFERRED BY THE 1S PETITIONER AND 2ND RESPONDENT.** - **ANNEXURE 3: TRUE COPY OF THE JUDGMENT IN OS No.339/2010 DATED 19/8/2010 OF THE MUNSIFF COURT.** - **ANNEXURE 4: TRUE PHOTOCOPY OF THE JUDGMENT IN W.P.C.No. 19999/2010 DATED 19/8/2010 OF THE HONOURABLE HIGH COURT OF KERALA.** - **ANNEXURE 5: TRUE PHOTOCOPY OF THE LETTER DATED 31/8/2010 ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE 6: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 14/2/2010 ISSUED BY THE REGIONAL PASSPORT OFFICER.** - **ANNEXURE R1: TRUE PHOTOSTAT COPY OF DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD.** - **ANNEXURE R2: TRUE PHOTOSTAT COPY OF THE COMPLAINT FILED BY THE RESPONDENT BEFORE THE MULANTHURUTHY POLICE STATION.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** ## **THOMAS P.JOSEPH, J.** **==================================== Crl. M.C. No.5065 of 2010 ==================================== Dated this the 01[st] day of March, 2011** ## **O R D E R** Petitioners are accused in Crime No.553/2010 of Mulanthuruthy Police Station for offences punishable under Section 427, 447 and 506(i) read with Section 34 of the Indian Penal code. That case was registered on a complaint (Annexure-2) preferred by the second respondent to the Sub Inspector of Police, Mulanthuruthy. The police after investigation submitted a final report. In the meantime, petitioners sought to quash Annexure1, FIR in the case alleging that the matter is settled between them and the second respondent. The second respondent has filed a counter affidavit stating that the alleged statement was obtained under threat and coercion employed against him who is disabled by 50%. The second respondent is not agreeable to settle the case. I have heard learned counsel for petitioner, second respondent and the learned Public Prosecutor. 2. It is not in dispute that the building bearing No.1/204-A belonging to the first petitioner was given on rent to the second respondent sometime in October, 2007. While so, the first petitioner filed R.C.P No.74/2010 before the Rent Control Court **CRL.M.C. No.5065 of 2010** ## -: 2 :- seeking eviction of the second respondent on various grounds. Apparently, there was a settlement between the first petitioner and second respondent entered in the rent control proceeding as per I.A No.5332/2010 and seeking to dispose of that petition as per the settlement. According to the petitioners the first petitioner had paid `2,50,000/- to the second respondent including the security amount first petitioner had received at the time of entrustment. Based on that compromise the Rent Control Court passed order on 31.08.2010. It is the case of petitioners that pursuant to the compromise the second respondent vacated the shop building. It is also the case of petitioners and it was one of the terms and conditions of the settlement that the criminal case against petitioners would be withdrawn. The second respondent demanding further amount has backed out from the settlement. Learned counsel for the second respondent contends that it is under threat and coercion that the compromise was obtained in R.C.P No.74/2010. 3. It is not disputed that the alleged incident in the present case occurred on 31.04.2010 and Annexure-R2, complaint was preferred on 13.06.2010. Based on that, on 15.06.2010 the police registered Annexure-1, FIR as aforesaid. Later the rent **CRL.M.C. No.5065 of 2010** ## -: 3 :- control proceeding was settled between the first petitioner and the second respondent and the said proceeding was closed on 31.08.2010. Annexure-2 is the compromise petition preferred by the first petitioner and second respondent in the rent control proceedings. Paragraph (1) of the said petition states that second respondent has given peaceful surrender of the shop room to the first petitioner on 14.08.2010 by handing over the keys to the first petitioner. Paragraph (3) states that Crime No.553/2010 registered by the Mulanthuruthy Police on the complaint of second respondent against first petitioner and his relatives will be withdrawn by the second respondent and that he will co-operate with the first petitioner for quashing and compounding the said complaint by filing appropriate petitions. For withdrawing the said complaint the second respondent will give a letter to the Sub Inspector of police on or before 17.08.2010 and a copy of the said letter will be given to the first petitioner on or before 20.08.2010. In paragraph (6), it is stated that the amount payable to the second respondent on various counts is fixed as `2,50,000/- and the said amount will be paid to the second respondent by the first petitioner by way of cheque after second respondent complied with conditions No.1 to 5 or **CRL.M.C. No.5065 of 2010** ## -: 4 :- on 15.09.2010, whichever is later. Petitioners asserted that the said amount was paid to the second respondent by way of cheque. Learned counsel for the second respondent has acknowledged that second respondent received the said amount by way of cheque. Annexure-5 is the photocopy of letter dated 31.08.2010, it is not disputed, given by the second respondent to the Sub Inspector of Police, Mulanthuruthy stating that the dispute in the Criminal case have been settled between him and the first petitioner and that he has withdrawn other case filed against petitioners. In the circumstances, the second respondent requested the Sub Inspector that the case registered against petitioners (Crime No.553/2010) may be withdrawn. Learned counsel for petitioners point out that in view of pendency of the case, the second petitioner was issued Annexure-6, notice by the Passport Authority directing him to show cause why the application preferred by him for the issue of Passport shall not be closed in the light of police report (referring to Annexure-1, FIR). 4. No doubt the second respondent has a contention that the compromise in the rent control proceeding was obtained under threat and coercion. I must bear in mind that Annexure-2, compromise petition was prepared on October 16, ## **CRL.M.C. No.5065 of 2010** ## -: 5 :- 2010 and admittedly that compromise petition was accepted and acted upon by the Rent Control Court on 31.08.2010 and rent control proceeding was closed. It is also not disputed that pursuant to the terms of the said compromise, second respondent received `2,50,000/- from the first petitioner as per cheque. Though it is contended by second respondent that the agreement was executed under threat and coercion it is relevant to note that from 31.08.2010 till day no action was taken by the second respondent to reopen the rent control proceeding. Instead he has enjoyed the benefit of some of the terms and conditions of Annexure-2, compromise favourable to him and received `2,50,000/- as per cheque. Now the second respondent cannot be allowed to turn round and say that he is not bound by the terms and conditions of the agreement. 5. All the offences attributed to the petitioners are compoundable with or without permission of the Court. True that second respondent has not agreed to compound the offence either in the trial court or in this Court. It is not as if the petitioners are without remedy. 6. In **C.B.I vs. Duncans Agro Industries** (AIR 1996 SC 2452), the offence alleged was cheating and there was a **CRL.M.C. No.5065 of 2010** ## -: 6 :- civil suit filed by the affected party which was settled and a compromise decree was passed. The accused in the connected criminal case approached the High Court to quash proceeding under Section 482 of the Code of Criminal Procedure. The Supreme Court observed that the compromise decree in the civil case amounted to compounding of offence of cheating. Of course investigation in that case was not completed for a long time but it was held that the complaint is liable to be quashed. The Supreme Court in **State of Harayana vs. Bhajan Lal** (AIR 1992 SC 604), has held that where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings in maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge it is within the power of the High Court to quash the proceeding under Section 482. I stated that the rent control proceeding between petitioners and the second respondent is amicably settled and though, the second respondent has a contention that the settlement was under threat and coercion that contention cannot prima facie stand since, nothing was done in that regard by second respondent after 31.08.2010 and while he is still enjoining benefit of the **CRL.M.C. No.5065 of 2010** ## -: 7 :- sum of `2,50,000/- received from the first petitioner by way of cheque as part of the settlement. Pursuant to that agreement the second respondent even gave Annexure-5, letter to Sub Inspector of police requesting to withdraw the proceeding. Now the second respondent has turned volte-face and seeks to continue with the proceeding. I am inclined to think that it is without bona fides. Such a situation cannot be allowed to continue. The settlement of rent control proceedings by Annexure-2, compromise shall be deemed to be settlement of the criminal proceeding as well. In these circumstances, I am inclined to think that continuance of the proceeding would be an abuse of the process of court and the law. 7. Learned counsel for the second respondent pointed out that prayer in the petition is only to quash Annexure-1, FIR while the police has already submitted final report. There is no reason why that development shall not be taken into account by this Court and relief granted to the petitioners once this Court found that continuance of the proceeding is an abuse of process of the Court. Hence this Criminal Miscellaneous Petition is allowed. ## **CRL.M.C. No.5065 of 2010** **==> picture [41 x 10] intentionally omitted <==** Annexure-1, FIR, subsequent proceeding therein including the final report (if any) and other proceeding taken thereon to the extent it concerned petitioners are quashed. ## **THOMAS P. JOSEPH, JUDGE.** vsv