N. RAMARAJ S/O NARAYANAN NAIDU AND R. PREMAVATHY W/O R. NARAYANAN NAIDU V. MADHUSUDHANAN S/O CHURULLIYIL RAMAN AND STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930** **Crl.MC.No. 1931 of 2008()** ## **-------------------------** ## **PETITIONER(S):** ## **----------------------** ## **1. N.RAMARAJ,S/O.NARAYANAN NAIDU, KARUVELANGULAM,THAZHEKKAD DESOM, THAZHAKKAD VILLAGE,MUKUNDAPURAM TALUK.** **2. R.PREMAVATHY,W/O.R.NARAYANAN NAIDU, KARUVELANGULAM,THAZHAKKAD DESOM, THAZHAKKAD VILLAGE,MUKUNDAPURAM TALUK.** **BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT(S):** **-----------------------** **1. MADHUSUDHANAN,S/O.CHURULLIYIL RAMAN, EDAMUTTAM DESOM,VALAPPAD VILLAGE, CHAVAKKAD TALUK.** **2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** **PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K.** **SRI.RENJITH THAMPAN FOR R1 SMT.P.A.ANITHA FOR R1** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 3.10.2008, THE COURT ON 13/11/2008 PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = ## **CRL.M.C. No.1931 of 2008** = = = = = = = = = = = = = == = = = = = = = = = = = **Dated this the 13[th] day of November, 2008** ## **O R D E R** -------------- Prayer in this petition is to quash Annexure A complaint filed by the first respondent in the court of Judicial First Class Magistrate, Irinjalakuda against petitioners for offences punishable under Sections 406, 417, 420 and 468 read with 34 of the Indian Penal Code (for short, “the Code”). Petitioners who are the accused have come to this Court under Section 482 of the Code of Criminal Procedure (for short, “Cr.P.C.”). 2. Heard both sides. 3. First respondent filed complaint alleging that his brother-in-law was engaged in some business in the building bearing Sy.No.160/1 of Irinjalakuda Village and while so, one Anilkumar informed him that petitioners are intending to sell the said building and 2.5 cents of land abutting the P.W.D. road. On 23.9.2002 petitioners and first respondent entered into an agreement as per which first respondent agreed to purchase the land and building for a total consideration of Rs.2,05,000/-. Petitioners received Rs.50,000/- on that day. A period of 18 ## **CRL. M.C. No.1931 of 2008** ## **-: 2 :-** months was fixed for execution of the sale deed. Petitioners had undertaken to evict the tenants from the building before execution of the sale deed and to discharge all encumbrance in the property. It was also agreed that incase there is any delay in effecting execution, period of agreement could be extended. On 10.1.2003, petitioners took a further sum of Rs.35,000/- from the first respondent and endorsed that fact on the back of the agreement. On 12.7.2004 another agreement was executed between the parties stating that Rs.85,000/- was taken as advance. On 22.11.2004 petitioners took a further sum of Rs.40,000/- from the first respondent by way of advance and made an endorsement to that effect on the back of the agreement. In May, 2005 first petitioner told the first respondent that he is involved in a love marriage and is not able to reside with his family members and that he is not able to discharge the liability of Rs.8,00,000/- over the property agreed to be sold and hence a fresh agreement could be executed between the parties. On 16.6.2005 another agreement was executed between the parties stating that Rs.1,25,000/- was taken by the petitioners as advance from the first respondent. First respondent signed that agreement and handed over the same to petitioner No.2 to obtain the signature of petitioner ## **CRL. M.C. No.1931 of 2008** ## **-: 3 :-** No.1. That was done as per the instruction of the first respondent. But that agreement was not returned to the first respondent wilfully to make it appear that since petitioners are in custody of that agreement, liability under the agreement has been discharged by cancellation of the agreement itself. Petitioners retained that agreement putting a different date beneath their signature. Thus petitioners cheated the first respondent and fabricated the document. 4. Learned magistrate initially dismissed the complaint observing that what is involved is a civil dispute. That order was challenged by the first respondent in this Court in Crl. R.P. No.2918 of 2006. A learned Single Judge of this Court by order dated 24.11.2006 set aside the order dismissing the complaint and remitted the matter to the learned magistrate for fresh consideration after taking into account the entire averments in the complaint and the sworn statement of the complainant and C.W.2. First respondent was given liberty to examine other witnesses if any, in support of the averments in the compliant. After remand, no further evidence was let in by the first respondent. Learned magistrate considered the complaint, sworn statement of the first respondent and C.W.2 and took cognizance for the offences under Sections 406, 417, 420 and 468 read with 34 of the ## **CRL. M.C. No.1931 of 2008** ## **-: 4 :-** Code. Petitioners are aggrieved and request this Court to exercise the power under Section 482 Cr.P.C. to quash the complaint. 5. Counsel for the petitioners placed reliance on the decisions in **Hotline Teletubes and Components Ltd. v. State of Bihar** (2005) 10 SCC 260 and **Muralilal Gupta v. Gopi Singh** (2005) 13 SCC 699). Counsel contended that even if the entire averments in the compliant are accepted, no offence under the Code is made out it being purely a civil dispute for failure of petitioners to honour the alleged agreement for sale. It is further contended that at any rate, sworn statement of the first respondent or C.W.2 does not disclose any offence. Learned counsel for the first respondent supported the finding of the court below. 6. For taking cognizance averments in the complaint and sworn statement of complainant and witnesses if any, have to be considered. Therefore, merely based on the sworn statement of the first respondent and C.W.1 alone, petitioners cannot justifiably urge this Court to invoke the power under Section 482 Cr.P.C. and quash the complaint. 7. In short what is alleged in the complaint is that with the intention of cheating the first respondent petitioners entered into an ## **CRL. M.C. No.1931 of 2008** ## **-: 5 :-** agreement with the petitioners, received substantial sum out of the sale consideration as advance and avoided execution of the sale deed. It is also that ultimately, the renewal agreement was got into the custody of petitioners under the guise of obtaining signature of first petitioner, but petitioners put a different date beneath their signatures and refused to return that agreement to the first respondent to make it appear that liability under that agreement was discharged by cancellation of the agreement itself as evidenced by the fact that petitioners are in custody of the agreement which created liability on them. According to the first respondent, attempt of the petitioners was to cheat him. On going through the averments in the complaint it is difficult to say that what is made out is only a civil liability for specific performance of the alleged agreement for sale. I am satisfied that so far as the offences punishable under Sections 417 and 420 of the Code are concerned, learned magistrate was correct in taking cognizance on the materials available. 8. So far as offence under Section 406 of the Code is concerned, first respondent had to show that there was criminal breach of trust. Criminal breach of trust is defined in Section 405 of the Code. The essential ingredient is that the accused, being in any ## **CRL. M.C. No.1931 of 2008** ## **-: 6 :-** manner entrusted with property or with any dominion over property dishonestly misappropriates the said property or converts it to his own use or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. According to the first respondent, agreement executed on 16.6.2005, signed by him and entrusted to second petitioner to obtain signature of first petitioner was not returned. But it is difficult to say that petitioners dishonestly misappropriated or converted any property to their use or dishonestly used or disposed of any property (here, the agreement) as contemplated in Section 405 of the Code. Therefore, there was no sufficient material for taking cognizance for the offence punishable under Section 406 of the Code. 9. Now I shall refer to the offence alleged to be committed and punishable under Section 468 of the Code. Forgery is defined in Section 463 of the Code. It involves making of false documents, among other things. Making of false documents is defined in Section 464 of the Code. It involves doing of any of the acts enumerated in clauses (a) to (d) with the intention of causing it to be believed that such document or part of the document, etc., is executed by a person by whom or by whose authority the maker knows has not made it. In ## **CRL. M.C. No.1931 of 2008** ## **-: 7 :-** this case the allegation in Annexure A complaint to attract the offence under 468 of the Code is that petitioners put a different date beneath their signatures in the agreement dated 16.6.2005. That case comes under clause secondly of Section 464 of the Code. Putting a different date than the date of execution of the document fraudulently to make it appear that the document was executed on a different date, if it is for the purpose of cheating amounts to offence punishable under Section 468 of the Code. 10. In the light of what I have stated, Annexure A complaint to the extent it related to the offence under Section 406 read with 34 of the Code and consequent proceedings in respect of that offence are liable to be quashed. There is however, no reason to interfere with the order of the learned magistrate taking cognizance for the offences punishable under Section 417, 420 and 468 read with 34 of the Code. This petition is therefore disposed of in the following lines: (a) Annexure A complaint and all consequent proceedings to the extent it related to the offence punishable under Section 406 read with 34 of the Code are quashed. (b) This petition to the extent it related to ## **CRL. M.C. No.1931 of 2008** ## **-: 8 :-** the offences punishable under Sections 417, 420 and 468 read with 34 of the Code is dismissed. (c) Learned magistrate shall proceed with the case to the extent it concerned the offences punishable under Sections 417, 420 and 468 read with 34 of the Code and dispose of the same as provided under law untrammelled by any of the observations contained in this order. Criminal Miscellaneous Application No.2651 of 2008 shall stand dismissed. ## **THOMAS P.JOSEPH, JUDGE.** vsv ## **CRL. M.C. No.1931 of 2008** **-: 9 :-**