Nabeesa and Abbas v. Saithalavi and State of Kerala

**Crl.MC.No. 1301 of 2017** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY ,THE 21ST DAY OF DECEM BER 2018 / 30TH AGRAHAYANA, 1940 Crl.MC.No. 1301 of 2017** **CC 774/2011 of JUDICIAL FIRST CLASS MAGISTRATE NO.II,PALAKKAD CRIME NO. 107/2010 OF Mankara Police Station , Palakkad** ## **PETITIONERS/ACCUSED NO.2 AND 3:** **1 NABEESA AGED 66 YEARS, W/O. SAIDALIKUTTY, CHOLAPPARA VEEDU,KALLOOR P.O, PALAKKAD. 2 ABBAS AGED 67 YEARS, S/O.SAIDU MUHAMMED,PATHIYARAKALAM HOUSE, KINAVALLUR P.O, PALAKKAD. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS/DE FACTO COMPLAINANT AND STATE:** **1 SAITHALAVI AGED 66 YEARS, S/O. MOOSAKUTTY RAWATHER,PATHIYARAKKAD PARAMBU, EDATHARA AMSOM DESOM,PALAKKAD DISTRICT - 678 005. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM - 682031.** **BY ADVS. SRI.LIJU. M.P SRI.SAJAN VARGHEESE K.** ## **OTHER PRESENT:** ## **SMT PRIYA SHANAVAS- PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD 3.10.2018 THE COURT ON 21.12.2018 SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1301 of 2017** 2 ## **JUDGMENT** The petitioners who are arraigned as the 2[nd] accused and 3[rd] accused in C.C.No.774/2011 pending before the Court of the Judicial First Class Magistrate-II, Palakkad have filed this petition under Section 482 of Criminal Procedure Code to quash Annexure A, Protest complaint and further proceedings pursuant thereto. The case was initiated on the basis of the complaint filed by the de facto complainant as Crl.M.P.4145/2010 against the petitioners/ accused Nos.2 and 3 and others alleging to have committed offences punishable under sections 417, 423, 465, 468, 471 read with 34 of the Indian Penal Code. 2. For the sake of convenience, the petitioners herein are referred to as 2[nd] accused and 3[rd] accused and the defacto complainant is referred to as the 1[st] respondent. Annexure A is the complaint filed by the 1[st] respondent before the Judicial First Class Magistrate II. 3. The allegations in the complaint in brief are as follows: The 1[st] respondent was serving military for quite sometime. During the said period one Havumma w/o Kader Rawther who was the owner in possession of 1 acre 10 cents of **Crl.MC.No. 1301 of 2017** 3 property as per gift deed No.882/1996 of SRO, Parali ,had assigned the same to the 1[st] respondent as per document No.1593/1983 of SRO Parali. While he was in possession and enjoyment of that property the 1[st] and 2[ nd ] accused the children of Havumma and Kader Rawther along with other accused with their common intention to cheat him executed document No.4718/08 of SRO Parali in favour of Noorul Huda Mahal Jumaath as if they are having the right to alienate the property as the children of the original owners of the property which led to the institution of various civil suits. The property thus assigned by them was having an extent of 31.38 cents and it forms part of 1 acres 10 cents assigned to the 1[st] respondent by Havumma. Accused No.4 and 5 are the attesting witnesses to the document and the other accused have also joined to commit the offences. 4. Heard the learned counsel for the accused No.2 and 3/petitioners and the learned counsel for the respondents. 5. It is submitted by the learned counsel for the 2[nd] and 3[rd] accused that the property which belonged to the 1[st] respondent is in Re.Sy.No.470/4 and its old Sy.No. is 1A/1B-Part, wheres the property transferred by the 2[nd] and 3[rd] accused to the Wakf is in Re.Sy.No.470/5 with the old Sy.No.1A/1C part. It is further submitted by the learned counsel for the 2[nd] and 3[rd] accused that **Crl.MC.No. 1301 of 2017** 4 on a complaint filed by the 1[st] respondent a detailed enquiry was conducted by District Registrar regarding the registration of the Wakf sale deed by the accused and it was found that the property of the 1[st] respondent is in Sy.No.470/4 and the Wakf property is in Sy.No.470/5. It was further found on enquiry that the Wakf property having an extent of 31.38 cents originally belonged to Khader Ravuthar, the husband of Havvumma and the Wakf property transferred as per sale deed No.4718/08 in Sy.No.470/5 is a different one and the 1[st] respondent has no right over the property in Re.Sy.No.470/5. 6. On a perusal of the records it is revealed that the complaint filed by the 1[st] respondent alleging that the 2[nd] and 3[rd] accused along with the other accused persons have cheated him and his property have been transferred by executing Wakf sale deed No.4718/2008 was investigated by the police after registering FIR No.170/2010 and final report was filed stating that the issue involved is of civil nature and thus referred the case. Against that the protest complaint was filed and when proceedings were initiated by the learned Judicial First Class Magistrate in the protest complaint the 4[th] accused approached this Court with Crl.M.C 3625/2012 to quash the further proceedings in CC.No.774/2011. As per an order dated **Crl.MC.No. 1301 of 2017** 5 16.1.2014 the said petition was allowed and all further proceedings against the 4[th] accused was quashed. It is also revealed from the records that accused Nos.5 and 6 had also filed similar petition before this Court under Section 482 of Cr.P.C and the proceedings initiated against them were also quashed by an order dated 14.12.2016. 7. Since the petition is under Section 482 Cr.P.C the question to be looked into is whether the 2[nd] and 3[rd] accused/petitioners are entitled to get an order to quash the proceedings initiated against them on the basis of the protest complaint filed against the finding of the Investigating Officer that the dispute is purely civil in nature. 8. Bearing in mind the legal proposition of law as enunciated in _**Gian Singh v. State of Punjab and Another [(2012) 10 SCC 303], Narinder Singh and Others v. State of Punjab and Another [(2014) 6 SCC 466], Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others v. State of Gujarat and another (2018)1 SCC (Cr)1**_ etc whether the case on hand persuade this Court to exercise its power under Section 482 Cr.P.C, is the question to be looked into. 9. The specific allegation raised by the 1[st] respondent is that the property which has been transferred by document **Crl.MC.No. 1301 of 2017** 6 No.4718/2008 is his property which he had purchased as per Document No.1593/83 of SRO, Parali. The copy of the document in favour of the 1[st] respondent is Annexure E. The schedule of the property would show that it is comprised in Sy.No 1A/1B part with a total extent of 1 acre 10 cents, whereas the property transferred as per the Wakf sale deed is Annexure C and it is having an extent of 31.38 in Sy.No.470/5 with its old Sy.No.1A/1C. The patta issued in favour of Huvvumma on 17.9.73 is Annexure F and it would show that the property is in Sy.No.1A/1B part. Annexure H is the true copy of the sketch of the property of the 1[st] respondent and the property involved in Wakf sale deed and 1 Acre 10 cents of the 1[st] respondent in 470/4 is shown in green shade as lying on the northern side of 470/5 having an extent of 31.8 cents which is marked in blue shade. So the property in 470/4 and 470/5 of Parali village in field No.470 are two different and distinct properties. It is further revealed from the report of the District Registrar, General that the property in 470/5 is covered by Thandaper No.351 and the property having an extent of 1.10 acres comprised in Re Sy.No.470/4 comes under Thandaper No.1217. It is also revealed from the records that originally in the document executed by the Abdul Rehman and Nabeesa, accused Nos.1 and 2, it was **Crl.MC.No. 1301 of 2017** 7 mistakenly stated that the property originally belonged to Havvumma (their mother) but the said mistake was corrected by executing the correction document produced as Annexure D. The recitals in Annexure D would show that the property transferred by them to Noorul Huda Mahal Juma-ath originally belonged to their father Ravuthar and after his death, it devolved upon them and by executing the rectification document the above mistake crept in the first document was corrected and the mistake crept in was only by an oversight and not an intentional one which is clear by the report of District Registrar who filed Annexure I report. 10. In the ultimate analysis, it could be seen that the finding of the Investigating Officer that the issue involved is one of civil nature which is relating to the identity of the property and that materials are lacking to support the allegations levelled against these petitioners/2[nd] and 3[rd] accused that they have committed offences punishable under cheating by impersonation or dishonest or fraudulent execution of deed of transfer or that they created forged documents with the intention to cause damage or injury to the respondent or dishonestly used any document as genuine, appears to be correct. Therefore if these accused persons/petitioners are proceeded with under any of the **Crl.MC.No. 1301 of 2017** 8 offences mentioned above, will definitely turn as mere abuse of the process of court. Considering the nature of the allegations levelled against them as well the documents produced before this Court, there can by no shadow of doubt to hold that not even a prima facie case so as to attract a criminal offence is available and if at all there is any dispute it could be resolved in a civil proceedings between the parties. It is also revealed from the records that the 1[st] respondent had already approached the civil court by filing O.S.No.375/2010 before the Principal Munsiff court, Palakkad and the same is pending consideration. Hence I have no hesitation to allow this petition and to quash the proceedings initiated against the 2[nd] and 3[rd] accused/petitioners in C.C.No.774/2011 before the Judicial First Class Magistrate Court-II, Palakkad. Allowed accordingly. Sd/- ## **SHIRCY.V** **JUDGE** smm **Crl.MC.No. 1301 of 2017** 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT DATED 23.10.2010 PREFERRED BY THE 1ST RESPONDENT BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE NO.II. PALAKKAD. ANNEXURE B TRUE COPY OF THE FINAL REPORT IN CRIME NO. 107/2010 OF MANKARA POLICE STATION IN PALAKKAD DISTRICT.** - **ANNEXURE C TRUE COPY OF THE WAKF SALE DEED NO. 4718/08/I OF SUB REGISTER OFFICE, PARALI.** - **ANNEXURE D TRUE COPY OF THE DEED OF CORRECTION NO.467/1/2011 S.R.O PARALI.** - **ANNEXURE E TRUE COPY OF THE DOCUMENT NO.1593/83 OF S.R.O PARALI DATED 04.07.1983.** - **ANNEXURE F TRUE COPY OF THE PATTA ISSUED INFAVOUR OF AUVA UMMA DATED 17.09.1973.** - **ANNEXURE G TRUE COPY OF THE RELEVANT PAGE OF BASIC TAX REGISTER OF PARALI -II VILLAGE.** - **ANNEXURE H TRUE COPY OF THE SKETCH SHOWING THE PROPERTY OF THE 1ST RESPONDENT AND THE PROPERTY IN RE SY.NO. 470/5 OF PARALI- II VILLAGE.** - **ANNEXURE I TRUE COPY OF THE REPORT OF THE DISTRICT REGISTRAR GENERAL, PALAKKAD DATED 29.11.2010.** - **ANNEXURE J TRUE COPY OF THE ORDER IN CRL.M.C. NO. 3625 OF 2012 DATED 16.01.2014 OF THIS HON'BLE COURT.** - **ANNEXURE K TRUE COPIES OF THE ORDER IN CRL.M.C. NO.931/2014 DATED 28.11.2016 OF THIS HON'BLE COURT.** **Crl.MC.No. 1301 of 2017** 10 ## **RESPONDENTS ANNEXURES** **ANNEXURE R1(a) COPY OF THE RELEVANT PAGE OF BASIC TAX RECEIPT OF SY.NOS.470/4 AND 470/5 PARALI II VILLAGE IN BLOCK NO.16** **ANNEXURE R1(b) COPY OF THE SHOW CAUSE NOTICE DATED 15.12..2010ISSUED BY THE REGISTRATION INSPECTOR GENERAL.** **ANNEXURE R1(C) COPY OF THE TAX RECEIPT DATED 25.8.2016 ISSUED BY THE VILLAGE OFFICER, PARALI II VILLAGE**