Mercy Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938** **Crl.MC.No. 3594 of 2016 () ---------------------------** **CRIME NO.351/2010 OF PERINGOME POLICE STATION, KANNUR.** **......** **PETITIONER/1ST ACCUSED: -----------------------** **MERCY THOMAS, AGED 42 YEARS, W/O.OLIKKAL SUNNY, OLIKKAL HOUSE, MALANKADAVU, PALAVAYAL VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS.SRI.T.K.VIPINDAS SRI.K.M.MUHAMMED HUSSAIN** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING S H O PERINGOME POLICE STATION, KANNUR DISTRICT.** **2. SOVI DOMINIC, AGED 52 YEARS, S/O.DOMINIC, VETTOM HOUSE, EDAVARAMBA, PULINGOME AMSOM DESOM, EDAVARAMBA P O, TALIPARAMBA TALUK - 670017.** **R1 BY PUBLIC PROSECUTOR SAREENA GEORGE R2 BY ADV.SRI.T.V.JAYAKUMAR NAMBOODIRI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **Crl.MC.No. 3594 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **------------------------** **ANNEXURE A1 : TRUE COPY OF THE PRIVATE COMPLAINT AS CMP.3707/2010 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR.** **ANNEXURE A2 : TRUE COPY OF THE FIR IN CRIME NO.351/2010 OF PERINGOME POLICE STATION.** **RESPONDENT(S)' ANNEXURES: NIL ------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 3594 of 2016 - - - - - - - - - - - - - - - - Dated 20[th] July, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioner herein is the 1[st] accused in Crime No.351 of 2010 of Peringome Police Station registered inter alia for the offences punishable under Sections 419, 420, 467, 468 and 471 read with Section 34 of the IPC. The proceedings are sought to be quashed on the ground that continuance of proceedings is nothing but an abuse of process of court. - 2.The 2[nd] respondent had entered into an agreement with the petitioner for the sale of 1.25 acres of land in R.S.No.119/1 of Pulingome amsom, as per agreement dated 18.5.1998 for a total consideration of Rs.7,15,000/-. A sum of Rs.90,000/- was received by way of advance. It was found on measurement that the extent of property was deficient by 28 cents. - 3.The 2[nd] respondent agreed to return the proportionate amount back to the petitioner on or before 17.9.2004 and Crl.M.C. No.3594 of 2016 -2- an endorsement to that effect was made on 1.5.2002 on the sale agreement itself. The case of the petitioner is that the amount was not repaid by the 2[nd] respondent and therefore a fresh agreement was executed on 17.9.2004. It was agreed that a sum of Rs.1,11,375/- would be repaid in three years time or in case the property is transferred, before such transfer. - 4.While so, the petitioner on getting knowledge of the fact that the 2[nd] respondent was attempting to alienate the property, filed O.S.No.104 of 2007 before the Sub Court, Payyannur seeking realisation of the sum of Rs.1,43,789/-. He also secured an order of attachment. During the pendency of proceedings, the petitioner as well as 2[nd] respondent entered into a compromise and the sum due to the petitioner was returned back. Consequently, suit was also withdrawn by the petitioner. - 5.After almost an year after the withdrawal of the suit the - 2[nd] respondent has filed Annexure A1 complaint before the learned Magistrate based on which Annexure A2 FIR was Crl.M.C. No.3594 of 2016 -3- registered wherein the allegation is that the petitioner along with accused No 2, and 3 had fabricated an agreement for return of money and on its strength had instituted a suit as O.S No 104 of 2007 and secured an attachment before judgment. The said proceeding is sought to be quashed at the threshold stage itself. - 6.Heard the learned counsel for petitioner, 2[nd] respondent as well as the learned Public Prosecutor. - 7.It is submitted by the learned counsel that the dispute is purely of civil nature and the sequence of events would reveal that the filing of the complaint is motivated by malafides. It is pointed out that it was after 1 ½ years of the withdrawal of civil suit that the 2[nd] respondent had filed the complaint. That itself, according to the counsel, reveals the falsity of the claim. It is also pointed out that the 2[nd] respondent had no such contention earlier that the agreement was fabricated. The learned counsel for the 2[nd] respondent would contend that the plaint was rejected for the failure of the petitioner to remit the balance court Crl.M.C. No.3594 of 2016 -4- fees. It is further urged that the 2[nd] respondent had filed the complaint immediately after the rejection of the plaint and contends that adequate explanation was offered for the delay in filing the complaint. - 8.The learned Public Prosecutor on instructions submits that the investigation is proceeding at a fast pace and the original of the agreement said to have been forged by the petitioner has already been seized and produced before the learned Magistrate. There is no reason to interfere at the threshold stage is the submission. - 9.I have considered the rival submissions and have gone through the records. It does not appear to me that this is one of those cases where this Court will be justified in interfering at this particular stage. It cannot be said at this juncture that none of the offences are made out. The submissions made by the learned counsel revolve around disputed question of facts and those are matters which cannot be adjudicated by this Court while entertaining a petition seeking to quash the FIR. Crl.M.C. No.3594 of 2016 -5- 10.In **State of A.P. V Vangaveeti Nagaiah** AIR 2009 SC 2648, a Full Bench of the Apex Court had after exhaustively considering State of **Haryana v. Bhajan Lal** [1992 Supp.(1) SCC 335] and **R.P.Kapur v. State of Punjab** [ AIR 1960 SC 866] had held as follows: As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where Crl.M.C. No.3594 of 2016 -6- the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. 11. After perusing the materials on record and looking in the facts of the instant case, I am of the view that this Court will not be justified in concluding that no offence is made against the petitioner herein. The submissions of the learned counsel appearing for the petitioner relate to Crl.M.C. No.3594 of 2016 -7- disputed questions of fact which cannot be adjudicated by this Court while exercising powers under Section 482 of Code of Criminal Procedure. These cases does not appear to fall into the above categories. 12.Having regard to the facts and circumstances, I am of the view that the relief sought for in the petition cannot be granted to the petitioner at this particular stage. 13.Having regard to the fact that the petitioner is a lady and the other facts and circumstances, if the presence of the petitioner is required for the purpose of investigation, notice shall be issued by the Investigating Officer to the petitioner and the petitioner shall appear before the Investigating Officer as and when required by the said officer. The petition is dismissed with the above observations. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-21.7.16