Monimon and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938** **Crl.MC.No. 4880 of 2013** **-------------------------** **CRIME NO. 545/2012 OF KANJIRAMKULAM POLICE STATION, THIRUVANANTHAPURAM** **...** **PETITIONER(S)/ACCUSED 1 TO 4 AND 6:** **----------------------------------** **1. MONIMON, S/O.SAMSON, AGED 42 YEARS, VASANTHA BAHVAN, MUNDAPLAVILA, NELIKKAKUZHY, KANJIRAMKUZHI, THIRUVANANTHAPURAM.** **2. MINI C.CHACKO, AGED 38 YEARS,** - **W/O.MONIMON, VASANTHA BAHVAN, MUNDAPLAVILA, NELIKKAKUZHY, KANJIRAMKUZHI, THIRUVANANTHAPURAM.** **3. ADV. N.SURESH KUMAR,** - **RESIDING AT RC STREET, KATTAVARAM, NEYYATTINKARA, THIRUVANANTHAPURAM.** **4. ANJANA, W/O.ADV. N.SURESH KUMAR, RESIDING AT RC STREET, KADAVATTARAM, NEYYATTINKARA, THIRUVANANTHAPURAM.** **5. JACOB SAM LOPEZ,** - **S/O.NAZIANS LOPEZ, RESIDING AT LOURDE MATHA NILAYAM, RC STREET, KADAVATTARAM, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.BLAZE K.JOSE** - **SRI.M.RAJESH SMT.RESHMA G.MENON SMT.K.J.JISMA** ## **RESPONDENT(S)/STATE:** - **---------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. SUB INSPECTOR OF POLICE,** - **KANJIRAMKULAM POLICE STATION, NEYYATTINKARA, THIRUVANANTHAPURAM-665 121.** **msv/** **-2-** **-2-** ## **Crl.MC.No. 4880 of 2013** **-------------------------** ## **3. JOHN DAS,** **S/O.DASAYYAN, DAS BHAVAN, PONGIL, VENPAKAL, ATHIYANNOOR, MULLUVILA,NEYYATTINKARA, THIRUVANANTHAPURAM-695 121.** **R1 & R2 BY PUBLIC PROSECUTOR SRI.T.R.RENJITH R3 BY ADVS. SRI.G.SUDHEER SRI.V.G.ARUN (NEYYATTINKARA)** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ## **Crl.MC.No. 4880 of 2013 -----------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES: -------------------------** **ANNEXURE I TRUE COPY OF THE AGREEMENT BETWEEN THE PETITIONERS AND THE 3RD RESPONDENT.** - **ANNEXURE 2 TRUE COPY OF THE PLAINT IN SUIT BEFORE THE SUBORDINATE JUDGES COURT NEYYATTINKARA AS O.S NO.267/12.** - **ANNEXURE 3 TRUE COPY OF THE COMPLAINT BY THE 3RD RESPONDENT BEFORE THE S.P.(RURAL) ARRAYING THE PETITIONERS AND OTHERS AS ACCUSED.** - **ANNEXURE 4 THE TRUE COPY OF THE ABOVE FIR IN CRIME NO.545/2012 REGISTERED BY THE KANJIRAMKULAM POLICE.** - **ANNEXURE 5 TRUE COPY OF THE OBJECTION FILED BY THE 3RD RESPONDENT IN O.S 267/2012 OF THE NEYYATTINKARA MUNSIFF'S COURT.** - **ANNEXURE 6 TRUE COPY OF THE NEWS PAPER REPORT IN DESHABHIMANI DAILY DTD.25.10.2012.** - **ANNEXURE 7 TRUE COPY OF THE NOTICE PUBLISHED BY THE ACTION COUNDIL.** - **ANNEXURE 8 TRUE COPY OF THE FLASH NEWS DTD.3.12.2012.** - **ANNEXURE 9 TRUE COPY OF THE ORDER IN SLP.NO.17615 AND 17616 OF 2013 DTD.21.10.2013.** - **ANNEXURE 10 TRUE COPY OF THE NEWS PAPER REPORT IN KERALA KAUMUDI DAILY DTD.19.9.2014.** - **ANNEXURE 11 TRUE COPY OF THE JUDGMENT IN OPC.1352 DTD.14.7.2015.** - **ANNEXURE 12 TRUE COPY OF THE INTERIM ORDER IN OPC.3168/2015 DTD.23.12.2015.** - **ANNEXURE 13 TRUE COPY OF THE REPORT FILED BY THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH DTD.28.10.2015 BEFORE THE JFMC III, NEYYATTINKARA.** - **ANNEXURE 14 TRUE COPY OF THE ORDER DTD.4.12.2015 OF THE JFMC III COURT.** **msv/** **-2-** **-2-** **Crl.MC.No. 4880 of 2013 -------------------------** ## **RESPONDENT(S)' ANNEXURE -----------------------** **ANNEX R3(a): TRUE COPY OF THE SALE DEED NO.365/2010 DTD.27.3.2010** **ANNEX R3(b): TRUE COPY OF THE SALE DEED NO.1617/2011 DTD.29.12.2012.** **ANNEX R3(c): TRUE COPY OF THE SALE DEED NO.690/2010 DTD.10.8.2011** **ANNEX R3(d): TRUE COPY OF FIR NO.30/2013 DTD.24.1.2013 REGISTERED BY KANJIRAMKULAM POLICE.** **ANNEX R3(e): TRUE COPY OF PLAINT IN OS.267/2012 BEFORE THE SUB COURT, NEYYATTINKARA FILED BY THE PETITIONER.** **ANNEX R3(f): TRUE COPY OF THE AGREEMENT FOR RE-CONVEYANCE DTD.10.8.2011.** **ANNEX R3(g): TRUE COPY OF LETTER NO.RTI/3430/12 DTD.18.9.2012 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER, PRINCIPAL SUB TREASURY, EAST FORT, THIRUVANANTHAPURAM.** **ANNEX R3(h): TRUE COPY OF DAY BOOK FILED BY STAMP VENDOR VAMADEVAN BEFORE FORT SUB TREASURY, THIRUVANANTHAPURAM FOR THE PERIOD OF 2011.** **ANNEX R3(i): TRUE COPY OF THE COMMON ORDER DTD.11.10.2012 PASSED BY THE SUB COURT, NEYYATTINKARA IN IA.NO.1055/2012 AND IA.NO.1124/2012 IN OS.NO.267/2012.** **ANNEX R3(j): TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN F.A.O.NO.346/2012 DTD.4.12.2012.** **ANNEX R3(k): TRUE COPY OF THE ORDER DTD.21.10.2013 PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN SLP.NO.17615 & 17616 OF 2013** **ANNEX R3(l): TRUE COPY OF THE REFER REPORT FILED BY THE CIRCLE INSPECTOR OF POLICE, POOVAR, BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, MUVATTUPUZHA IN CRIME NO.30/2013 OF KANJIRAMKULAM POLICE STATION.** **ANNEX R3(m): TRUE COPY OF THE LETTER NO.A2-690/14 DTD.8.7.2014 ISSUED BY STATE PUBLIC INFORMATION OFFICER, CENTRAL STAMP DEPOT.** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No.4880 of 2013** -----------------------------------------Dated this the 23[rd] day of November, 2016 ## **O R D E R** ## **~~~~~~~~** - 1.This petition is filed under Section 482 of the Code of Criminal Procedure. - 2.The petitioners herein are the accused Nos. 1 to 4 and 6 in Crime No.542 of 2012 of the Kanjiramkulam Police Station registered for offences punishable under Sections 143, 149, 120B, 468 and 471 of the Indian Penal Code. The prayer in this petition is to quash all further proceedings in the aforesaid Crime. - 3.For the sake of convenience, parties are referred to by their status in the complaint. - 4.The accused Nos. 1 and 2 are husband and wife respectively. They are engaged in timber and furniture business at Kanjiramkulam. According to the de facto complainant, he had purchased certain items of immovable properties belonging to the accused Nos. 1 and 2 by virtue of three sale deeds. The **Crl.M.C.No.4880 of 2013 -2-** mutation was effected in his favour after settling the dues towards the bank and thereafter the property was mortgaged and loan was availed. While so, a complaint was filed by the 3[rd] accused/3[rd] petitioner herein alleging that the de facto complainant was a moneylender and he had managed to obtain sale deeds in his favour as security for the loan availed by the accused Nos. 1 and 2. On its basis, Crime No.30 of 2013 was registered by the Kanjiramkualam Police Station. A civil suit was also instituted by the 1[st] accused as O.S. No.267 of 2012 before the Sub Court, Neyyattinkara seeking for a declaration that the sale deeds executed by the 1[st] petitioner and the 2[nd] petitioner in favour of the 3[rd] respondent were sham documents and executed purely as a security while money was advanced. Along with the plaint, the 1[st] petitioner had produced an agreement purported to have executed by the de facto complainant in favour of accused Nos. 1 and 2 agreeing to reconvey the properties covered under the sale deeds on receipt of a sum of Rs.19,51,000/-. According to the 3[rd] respondent this document was brought into existence by the petitioners and the other accused to set up a false claim in a **Crl.M.C.No.4880 of 2013 -3-** court of law. It is under the above fact scenario that a complaint was submitted against the petitioners and others before the police seeking initiation of action based on which the Crime was registered. - 5.Heard the learned counsel appearing for the petitioners, the 3[rd] respondent, and the learned public prosecutor. - 6.The learned counsel appearing for the petitioners submitted that the 3[rd ] respondent is a known moneylender and the allegation that the agreement is forged is without any basis. It is contended that the registration of the crime on the basis of frivolous allegations can be nothing but an abuse of process of law. It is further pointed out that a Civil suit instituted by the 1[st] petitioner wherein the transaction in question is challenged is pending before the competent Civil Court and in view of the above the parallel proceedings by way of criminal investigation by the police is malafide. Though the agreement in question was produced along with the plaint, the 3[rd] respondent had not denied its execution at the earliest stage. According to the learned Counsel, the findings of the Civil **Crl.M.C.No.4880 of 2013 -4-** Court will govern the issue and if it is ultimately held that the agreement is validly executed by the 3[rd] respondent, gross injustice will be perpetrated. It is further submitted that the investigating officer cannot be permitted to investigate into the veracity or genuineness of the agreement which is the duty of the Civil Court. It is also pointed out that the petitioners 3 to 5 have nothing to do with the allegations raised and they have been roped in solely for the purpose of harassing them. The learned counsel would rely on the decision of this Court in **Ramachandra Iyer v. N.C.Menon** [1961 KLT 419] to contend that in appropriate cases if it is found that the criminal proceedings will prejudice the trial of the civil suit pending between the parties, the criminal proceedings can be stayed till the decision of the civil suit is arrived at. - 7.Per contra, the learned counsel appearing for the 3[rd] respondent would submit that after having executed three sale deeds for valid consideration, with a view to set up a false and fraudulent claim, a forged agreement was produced by the petitioners before the Civil Court to make it appear that the 3[rd] **Crl.M.C.No.4880 of 2013 -5-** respondent had executed an agreement for sale in favour of the 1[st] petitioner. The learned counsel would further submit that on 24/01/2013, Crime No.30 of 2013 was registered at the instance of the 3[rd] petitioner alleging commission of offence punishable under Section 420 of the IPC and under Section 4 of the Kerala Money-Laundering Act and Section 13 and 17 of Kerala Money Lenders Act . Elaborating further, it is submitted that, at that stage, there was no case that an agreement for re-conveyance had been executed by the 3[rd] respondent in favour of the 1[st] petitioner. The learned counsel would further submit that there are clinching materials to conclude that the Stamp Paper on which the agreement was executed were sent from the stamp depot to Fort Sub Treasury for issuance to stamp vendors only on 07/10/2011, whereas the agreement is dated 5/8/2011. Insofar as the submission of the learned counsel appearing for the petitioner that the petitioners 3, 4 and 6 have no role to play, it is submitted that it is for the police to investigate the matter as Crime No.30 of 2013 of Kanjiramkulam Police Station was registered at the instance of the 3[rd] petitioner. Referring to a ## **Crl.M.C.No.4880 of 2013 -6-** catena of decisions, it was argued that the proceedings cannot be quashed at the initial stage itself if the facts make out an offence. - 8.I have considered the rival submissions and have perused the materials on record. 9.It is by now settled that terminating criminal proceedings at the threshold itself, or at the stage of FIR is to be exercised only in the rarest of rare cases and with great circumspection. The Apex Court in a catena of decisions, consistently have given a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. It has been held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and caprice. Reference can be made to the following judgments of the Apex Court where a note of caution was sounded to the Courts exercising powers **Crl.M.C.No.4880 of 2013 -7-** under Section 482 of Cr.P.C. ## 10.In **R. Kalyani v. Janak C. Mehta and Others** [2009(1) SCC 516], the Hon'ble Supreme Court had occasion to lay down the circumstances under which the High Court in exercise of powers under Section 482 will be justified in quashing the FIR. In paragraph Nos. 14 and 15 it was held as follows: 14. However, Dr. Monica Kumar and Another v. State of U.P. and Others 2008 (9) SCC p.798, para 36, held : "36.........The inherent power should not be exercised to stifle a legitimate prosecution. The 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 jurisdiction of quashing the proceeding at any stage." 15. Propositions of law which emerge from the said decisions are : ## (1) The High Court ordinarily would not **Crl.M.C.No.4880 of 2013 -8-** exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” ## 11.In **Kurukshetra University v. State of Haryana** [1977 (4) SCC 451], the Apex Court had laid down as follows : “It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a First Information Report. The **Crl.M.C.No.4880 of 2013 -9-** police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.” ## 12.Finally, in **Som Mittal V Government of Karnataka** [2008 (3) SCC 574], it was held as follows:- “We may observe here that despite this Court has consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power ## **Crl.M.C.No.4880 of 2013 -10-** under Section 482 is not intended to scuttle justice at the threshold.” 13.After having gone through the materials on record and after hearing the submissions, I am of the considered view that this Court will not be justified in embarking upon an enquiry as to whether the allegations in the FIR are likely to be established in the evidence or not. A perusal of the FIR and the attendant materials dissuades this Court from invoking its extra ordinary powers under Section 482 of the Code of Criminal Procedure. The petitioners have not been able to establish that the allegations do not spell out in the offence and that resort to criminal proceedings would amount to abuse of process. 14.I am unable to accept the contention of the petitioners that the criminal proceedings are liable to be quashed in view of the pendency of the civil suit. In the civil suit, the plaint of which is produced as Annexure-2, the 1[st] petitioner relies on an agreement purported to have been executed by the 3[rd] respondent in his favour agreeing to re-convey the properties. It appears prima facie that on the date of execution of the **Crl.M.C.No.4880 of 2013 -11-** agreement, the stamp paper on which the agreement is seen written, has not rolled out from the stamp depot. AnnexureR3(g) communication issued by the Public Information Officer, Principal Sub Treasury, Trivandrum to the 3[rd] respondent clearly reveals that on 5.10.2011 the stamp paper bearing No.5321 has not been sold from the Sub Treasury. Annexure-R3(h) day book also prima facie supports the case of the 3[rd] respondent. If that be the case, the allegations raised by the petitioner cannot be dismissed as such. I am of the view that the investigation has to proceed and the 3[rd] respondent cannot be asked to wait until the civil court adjudicates the matter. As held by the Apex Court in **Trisuns Chemical Industry V Rajesh Agarwal** ( 1999 (8) SCC 686 ) the mere fact that the act has a civil profile is not sufficient to denude it of its criminal outfit . - 15.Testing the facts of the instant case with the binding precedents of the Apex Court, I am of the considered view that at this juncture it cannot be said that the offences alleged are not made out against the petitioners. This Court also will not **Crl.M.C.No.4880 of 2013 -12-** be justified in dwelling into the matters in more detail lest it prejudice either of the parties. I am therefore of the considered view that the petitioners have failed to make out a case for quashing the criminal proceedings at the threshold itself. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/23/11/16