## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE K.HARIPAL**
**TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943**
**CRL.MC NO. 3097 OF 2020**
**CC 1563/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDURG,**
## **KASARGOD**
## **CRIME 802/2012 OF BEKAL POLICE STATION**
## **PETITIONER/2ND ACCUSED:**
## **MUHAMMED KUNHI**
**AGED 41 YEARS,S/O. ABDULLA, RESIDING AT MUKKOOD, KARAYIL HOUSE, RAVANESWARAM P. O., CHITHARI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.**
**BY ADVS. JACKSON JOHNY MUHAMMED YASIL ROSIN JOSEPH**
## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:**
**1 STATE OF KERALA THROUGH STATION HOUSE OFFICER, BEKAL POLICE STATION, (CRIME NO.802/2012), REPRESENTED BY THE PUBLIC**
**PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. EMAIL - SIBEKALPSKSD.POL@GMAIL.COM**
- **2 B. H. ABDUL KADER**
**AGED 54 YEARS,S/O. IBRAHIM, R/AT KALIKADAVATH HOUSE, POOCHAKKAD, KEEKKANAM, KASARAGOD DISTRICT - 671 121.**
## **OTHER PRESENT:**
## **SR.PP - SRI. HRITHWIK C.S.**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 12.10.2021, THE COURT ON 09.11.2021 PASSED THE FOLLOWING:**
Crl.M.C.3097/2020
2
## **O R D E R**
Petitioner is the 2[nd] accused in C.C.1563/2013 pending before the Judicial First Class Magistrate-II, Hosdurg. That case arose out of the final report in crime 802/2012 of Bekal police station, which in turn was registered on the strength of Annexure-A1 first information statement given by the 2[nd] respondent alleging offence under Section 420 IPC against three persons. It is alleged that the 2[nd] respondent owned a lorry KL-14-E-4158, at that time the petitioner approached him and ascertained whether he intends to sell the vehicle. Then he met the defacto complainant accompanied by one Shan Thomas and his partner one Prakasan and offered to purchase the lorry for Rs.2,32,000/-. An advance payment of Rs.50,000/- was made and the balance amount was agreed to be paid by 31.10.2012. It was also agreed that if the amount is not paid on that day, they would be liable to pay a daily rent of Rs.5,000/- and that the defacto complainant will be entitled to repossess the vehicle. In spite of taking possession of the vehicle after paying Rs.50,000/-, the balance amount was not paid and thus alleging that he was cheated by the accused persons, that is the petitioner, the said Shan Thomas and Prakasan, a criminal prosecution was launched and crime No.802/2012 of Bekal police station was registered. On conclusion of investigation, Annexur-A2 charge
Crl.M.C.3097/2020
3
sheet was laid against three persons. The said Shan Thomas as the first accused, petitioner as the 2[nd] accused and Prakasan as the 3[rd] accused, which is now pending before the Judicial First Class Magistrate-II, Hosdurg.
2. Now the petitioner has moved this Court under Section 482 of the Cr.P.C. for quashing the proceedings. According to him, he is totally innocent in the deal; he had no role in the transaction; he did not receive any money from the 2[nd] respondent, that there is no allegation that he had induced the defacto complainant to enter into an agreement or deceived the defacto complainant. The only allegation is that he had introduced the 1[st] and 3[rd] accused to the defacto complainant and that he was also present at the time of the transaction. According to him, basic ingredients of cheating are absent and therefore the matter cannot be proceeded against him. The petitioner also invited my attention to Annexure-A4 order of this Court in Crl.M.C. 2226/2016, which was filed by the 3[rd] accused for quashing the proceedings, by the order the proceedings against the 3[rd] accused stood squashed. Therefore, he prays that the proceedings against him also may be quashed.
3. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. Even though notice was served on the 2[nd] respondent, he has chosen not to contest.
Crl.M.C.3097/2020
4
4. The learned counsel for the petitioner submits that the lorry deal was based on Annexure-A3 agreement entered into between the 1[st] accused and the 2[nd] respondent and he is neither a party nor even a witness to the agreement. Therefore, such an offence will not lie against him. According to him, the defacto complainant has already repossessed the vehicle and therefore the proceedings are continuing unnecessarily. The counsel also relied on the decision reported in **Damodaran T.V. and another v. State of Kerala and another [2018 (1) KHC 677]** . According to him, the case is purely civil in nature and therefore the allegations will not lie against him.
5. The crime was registered on the basis of the first information statement given by the 2[nd] respondent. Even though the petitioner and Mr. Prakasan are also implicated in the allegations by the 2[nd] respondent, from Annexure-A3 agreement which is admitted in the first information statement, it is clear that it was a deal between the 2[nd] respondent and the 1[st] accused. Annexure-A3 throws sufficient light into the transaction. The lorry bearing No.KL-14-E-4158 belonged to the 2[nd] respondent, which was agreed to be sold to the 1[st] accused for a total consideration of Rs.2,32,000/- and possession of the same was handed over on the date of the agreement, i.e. on 20.10.2012, after receiving an advance consideration of Rs.50,000/-; the
Crl.M.C.3097/2020
5
balance amount of Rs.1,82,000/- was agreed to be paid on or before 31.10.2012. It was also stated that only the photocopy of the registration certificate, insurance certificate etc. were given and the originals were retained by the 2[nd] respondent. It was also stated that if the amount is not paid within 31.10.2012, the 2[nd] respondent who is the registered owner is entitled to repossess the vehicle and also that he is entitled to claim Rs.5,000/- daily as rent. The agreement was signed by the 2[nd] respondent and the 1[st] accused and one Basheer and one Thahira are the witnesses.
6. Even though the 2[nd] respondent has said that it was a deal between himself on the one side and accused Nos.1 to 3 on the other, Annexure-A3 agreement does not speak about any transaction with the petitioner. Therefore, Annexure-A3 agreement which was reduced into writing after striking deal between the parties, does not prove the role of the petitioner either as a person who had purchased the lorry or even as an intermediary or a person who had made any promise. In the circumstances, it is not known as to how he could be implicated in a criminal proceedings.
7. Secondly, on parity of reasons also the petitioner is entitled to succeed. Annexure-A4 order of this Court in Crl.M.C.2226/2016 indicates that the 3[rd] accused had moved this Court for quashing the proceedings and
Crl.M.C.3097/2020
6
finding that there is no evidence of any transaction between the 2[nd] accused and the 3[rd] accused this Court quashed the proceedings against him. All the reasonings stated by this Court for quashing the proceedings against the 3[rd] accused are liable to be borrowed for this purpose also. Moreover, the prosecution has no case that the accused had done anything in prosecution of their common object. It is not stated that the accused are guilty under Section 420 read with 34 of the IPC. On that reason also the allegation against the petitioner will not sustain.
8. It is the settled proposition of law that this Court will be very slow in quashing a proceedings especially when charge sheet is filed after conducting investigation by the police. But here, on the face of the document produced by the prosecution, it is evident that the petitioner has no role in the alleged transaction. Firstly, as rightly pointed out by the learned counsel, ingredients of Section 420 IPC are not available against the petitioner. It could not be made out that he had made any offer or any promise or had taken delivery of the vehicle from the 2[nd] respondent. At the most he had only acted as an intermediary. Annexure-A3, which is the best document to prove the transaction, does not suggest any role having been played by the petitioner. Therefore, the materials produced by the prosecution, if are uncontroverted,
Crl.M.C.3097/2020
7
will not give rise to the finding that the petitioner is guilty, such a proceedings cannot lie against him. Here also, as noticed earlier, the documents relied on by the prosecution do not indicate that the petitioner had any deal with the 2[nd] respondent. It is only stated in the first information statement that he was also present at the time when the agreement was executed. If he had made any offer or if he had played a role as that of the 1[st] accused, necessarily he also would have joined the agreement for sale; that has not been done. On these considerations, there is no justification in proceeding against the petitioner accusing him of offence under Section 420 IPC and therefore, there is justification in quashing the proceedings against him. On these considerations, I find that the petitioner is not liable to be prosecuted for offence under Section 420 IPC and the proceedings in C.C. 1563/2013 as against the petitioner as the 2[nd] accused is liable to be quashed. The Crl. M.C. is allowed and the petitioner shall stand exonerated.
## **SD/-**
**K.HARIPAL JUDGE**
okb/6.11
//True copy// P.S. to Judge
Crl.M.C.3097/2020
8
## **APPENDIX OF CRL.MC 3097/2020**
**PETITIONER ANNEXURE ANNEXURE A1 TRUE COPY OF THE FIR DATED 28.11.2012 IN CRIME NO.802/2012 OF BEKAL POLICE STATION. ANNEXURE A2 A TRUE COPY OF THE FINAL REPORT DATED 01.07.2013 IN CRIME NO.802/2012 AS NUMBERED AS C.C.NO.1563 OF 2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, HOSDURG. ANNEXURE A3 A TRUE COPY OF THE JUDGMENT IN C.C.NO.1353 OF 2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, HOSDURG. ANNEXURE A4 A TRUE COPY OF THE ORDER DATED 03.10.2016 IN CRL.M.C.NO.2226 OF 2016 OF THIS COURT.**
