Nalakath Salim and Others v. S.V. Imbichipathumabi and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 1ST DAY OF OCTOBER 2014/9TH ASWINA, 1936 Crl.MC.No. 1127 of 2012 () --------------------------- CRIME NO. 387/2011 OF KASABA POLICE STATION , KOZHIKODE PETITIONER(S): - ----------------- 1. NALAKATH SALIM, AGED 56 YEARS S/O.KADHEEJA, KHADEEJA'S HOUSE, 5/250 KODIYERI P.O., KURICHIYIL 670102, NEW MAHI, THALASSERY 2. T.P.BEEVI, AGED 62 YEARS D/O.KHADEEJA, 43/1094, AFSANA THIRUVANGD, THALASSRY-670101 3. T.P.SAFIYA, AGED 58 YEARS D/O.KHADEEJA, 4/96(8/66), SAFIYAS MUZHUPPILANGADU, THALASSERY-670101 4. T.P.AMSA, AGED 53 YEARS D/O.KHADEEJA, 17/142A, ARAFA THRUVANGAD, THALASSERI-670101 5. N.SABIRA, AGED 48 YEARS D/O.KHADEEJA, FIRAZ, 18/401 THIRUVANGAD, THALASSERY-670101 6. T.P.AMINA, NALAKATH, D/O.KHADEEJA, 7/146A THIRUVANGAD, THALASERY-671101 7. KADANKANDI KANNOTH SHAFEEQ, AGED 45 YEARS S/O.T.P.KUNHAHAMMED,27/191, SHAFAS, THIRUVANGAD THALASSERY-670101 8. KADANKANDI KANNOTH KHADEEJA, AGED 64 YEARS W/O.T.P.KUNHAHAMMED, SHAFAS, THIRUVANGAD THALASSERY-670101 9. KADANKANDI KANNOTH SAHIDA, AGED 50 YEARS D/O T.P.KUNHAHAMMED, SHAFAS, THIRUVANGAD THALASSERY-670101 10. KADANKADI KANNOTH HASEENA, AGED 44 YEARS D/O.T.P.KUNHAHAMMED, SHANAS, THIRUVANGAD AMSOM DESOM, THALASSERY-670101 11. KANDANKANDI KANNOTH MOOSA SAHIR, AGED 41 YEARS S/O.T.P.KUNHAHAMMED, SHANAS, THIRUVANGAD THALASSERY-670101 -2- Crl.MC.No. 1127 of 2012 () 12. THERUVATHUKANDI RAJEEVAN NAMBIAR, AGED 42 YEARS S/O.SANKARAN NAMBIAR, ATHOLI VILLAGE MUDAKKALLOOR DESOM, KOYILANDI TALUK, KOZHIKODE DIST 13. KOYYALUMMEL CHNDRAN, AGED 45 YEARS S/O.CHATHU, NARIPPATTA DESOM AND VILLAGE VATAKARA TALUK, KOZHIKODE DIST 14. KUNDOLANKANDI PRABHAKARAN, AGED 49 YEARS S/O.NARAYANAN NAIR, BALUSSERI AMSOM DESOM P.O., BALUSSERI, KOYILANDI TALUK KOZHIKODE DIST 15. T.K.BALAN NAIR, AGED 65 YEARS S/O.ERANYACHAN NAIR, THANNIKUNDUNGAL HOUSE PUNNASSERI AMSOM, KUTTAMPUR DESOM, KOZHIKODE TALUK 16. AYATTU CHALIL SHEEJA, AGED 36 YEARS W/O.BABURAJ, ERAVANNOOR AMSOM DESOM, KOZHIKODE TALUK 17. KUNIYIL VALAPPIL RAJEEVAN, AGED 46 YEARS S/O.GOVINDAN NAIR, VILAYATTOOR AMSOM DESOM P.O.IRINGATH, KOYILANDY TALUK, KOZHIKODE DIST BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): - ------------------ 1. S.V.IMBICHIPATHUMMABI D/O.LATE SEETHIMARAKKARAKATH ALIKOYA, 75 YEARS PREMIER VILLA, WEST KALLAI, PANNIYANKARA AMSOM DESOM KOZHIKODE TALUK-673004 2. S.ABDULLAKUTTY, RETD SUB REGISTRAR, ABOUT 60 YEARS, HIRA, MANTHRAZ TATHEEMKHANA ROAD KINASSERI, MANKAVU, KOZHIKODE-673005 3. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031 R1 BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.K.SANEESH KUMAR R2 BY ADVS. SRI.T.K.VIPINDAS SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN R3 BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1127 of 2012 () APPENDIX PETITIONER(S) EXHIBITS ANNEX.A1:THE CERTIFIED COPY OF THE FIRST INFORMATION REPORT DTD 6/6/2011 IN CRIME NO 387/11 ANNEX.A2:THE CERTIFIED COPY OF THE CMP NO 1335/2011 DTD 2/6/2011 ANNEX.A3:THE TRUE COPY OF THE JENM ASSIGNMENT DEED 757/2010 DTD 20/10/2010 ANNEX.A4:THE TRUE COPY OF THE MORTGAGE DEED NO 641/1924 DTD 8/11/1924 ANNEX.A5:TRUE COPY ASSIGMENT DEED NO 65/1935 DTD 18/1/1935 ANNEX.A6:TRUE COPY OF THE WAKF DEED NO 661/1933. RESPONDENTS' EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE. dlk ## **C.T.RAVIKUMAR, J** ## **--------------------------------------Crl.M.(C) No. 1127 of 2012** ## **----------------------------------------** Dated this the 1[st] day of October, 2014 ## **JUDGMENT** The petitioners are accused Nos.1 to 17 in Crime No.387 of 2011 of Kasaba Police station, Kozikode. That crime came to be registered pursuant to the receipt of Annexure-A2 complaint forwarded by the Chief Judicial Magistrate Court, Kozhikode under section 156(3) of the Code of Criminal Procedure (for short the 'Cr.P.C.'). The first respondent is the defacto complainant. He filed Annexure-A2 complaint alleging commission of offfences under sections 420, 465, 468 and 471 r/w section 120(B) of the Indian Penal Code. The first respondent claims to be the muthavalli in respect of the properties covered by Annexure-A6 Wakf deed. Essentially, the contention is that the property covered by the same and some other extent of properties were originally belonged to one Seethimarakkarakath Alikoya and he mortgaged those properties to one Puthiya Veettil Kunhimoosa on 7.11.1924, as is obvious from Annexure-A4. The first respondent alleged that on the same day itself Puthiya Veettil Kunhimoosa executed a marupattam deed in favour of the mortgager viz., Seethimarakkarakath Alikoya on the same day **Crl.M.(C) No. 1127 of 2012** 2 itself and thereby despite the mortgage, the mortgaged property continued to be in the possession of the mortgager namely Seethimarakkarakath Alikoya and thereafter it is allegedly passed on to the possession of his legal heirs as also the muthavallis of the property. I may hasten to add that resisting such allegations the learned counsel for the petitioners submitted that the precise case of the petitioners is that after the mortgage of the property in question along with certain other extent of properties by Seethimarakkarakath Alikoya to Puthiya Veettil Kunhimoosa there was no marupattam as alleged and, in fact, after the expiry of the period fixed for redemption mentioned in Annexure-A4 a partition of the properties was effected. The persons who obtained shares of the partitioned property subsequently effected sale of such properties and ultimately some of such persons executed Annexure-A3 sale deed. As per the same, petitioners 12 to 17 purchased 50 cents of property comprised in Resurvey No.667 (old survey No.62/2B) in Kasaba Village from petitioners 1 to 11. In fact, on coming to know about the same transaction the first respondent filed Annexure-A2 complaint before the Chief Judicial Magistrate Court, Kozhikode. It is that complaint **Crl.M.(C) No. 1127 of 2012** 3 which was forwarded for investigation under section 156(3) Cr.P.C, and ultimately culminated in registration of the aforementioned crime. 2. The petitioners filed the captioned Crl. Miscellaneous case seeking quashment of Annexure-A1 FIR and Annexure-A2 complaint and all further proceedings pursuant thereto. 3. I have heard the learned counsel appearing for the petitioners, the learned counsel for the first respondent as also the learned Public Prosecutor. 4. The learned counsel for the petitioners contended that even if the allegations in Annexure-A2 complaint are taken in entirety as true they would constitute purely a civil dispute and despite the said fact the first respondent had chosen to initiate criminal proceedings solely to harass the petitioners. Therefore, the criminal proceedings initiated by the first respondent by filing Annexure-A2 complaint which ultimately caused the registration of Annexure-A1 FIR are liable to be quashed, it is contended. Further, it is contended that the property which was purchased by petitioners 12-17 from petitioners 1 to 11 as per Annexure-A3 along with other **Crl.M.(C) No. 1127 of 2012** 4 properties were originally belonged to one Seethimarakkarakath Alikoya and he mortgaged the said properties as per Annexure-A4 mortgage deed to one Puthiya Veettil Kunhimoosa. It is further submitted that after the death of Puthiya Veettil Kunhimoosa property covered by Annexure-A4 devolved upon his legal heirs and they effected partition of the said properties in the year 1929. It is also stated that the properties covered by Annexure-A3 along with certain other properties were actually set apart in favour of his son Ummer by Puthiya Veettil Kunhimoosa and Ummer as per Annexure -A5 assigned his right to one Puthiya Veettil Kunhimuhammed. The subsequent transactions through which ultimately the property reached the hands of petitioners 1 to 11 have been described in the memorandum of Criminal Miscellaneous case. It is the further contention of the petitioners that the property which was mortgaged by Seethimarakkarakath Alikoya as per Annexure-A4 was never converted as Wakf property and, in fact, since the properties are mortgaged properties it could not have been converted as Wakf properties. It is also the contention of the petitioners that after the purchase of the properties as Annexure-A3 petitioners 12 to 17 **Crl.M.(C) No. 1127 of 2012** 5 applied for effecting mutation in their favour in the village records in November, 2010. Admittedly, the dispute with respect to the mutation is still pending. It is also contended by the learned counsel for the petitioners that the facts thus expatiated above would go to show that the dispute involved is purely a civil in nature and therefore, Annexure-A2 complaint ought not to have been forwarded by the learned magistrate for investigation under section 156(3) Cr.P.C. and no crime ought to have been registered, on receipt of the same, for investigation. The learned counsel for the first respondent on the other hand contended that the contentions thus raised by the petitioners are absolutely untenable and it cannot be said that Annexure-A2 had not carried allegations that would attract the offences under sections 420, 465, 468, 471 and r/w section 120(B) of the Indian Penal Code. It is submitted that the allegations specifically made thereunder would attract the alleged offences and in the said circumstances the learned magistrate was right in forwarding Annexure-A2 complaint for investigation under section 156(3) Cr.P.C. and consequently, no illegality could be attributed with respect to the registration of the aforementioned crime. It is the core contention of **Crl.M.(C) No. 1127 of 2012** 6 the first respondent that the very Annexure- A3 document as also the contention of the petitioners in paragraph 3 of the captioned Crl. Miscellaneous case would reveal that the property covered by Annexure-A3 along with other properties were originally belonged to one Seethimarakkarakath Alikoya and he mortgaged the said properties to one Puthiya Veettil Kunhimoosa as per Annexure-A4 mortgage deed. It is further stated that when once it is admitted that the property in question which was belonged to the aforementioned Seethimarakkarakath Alikoya was mortgaged to Puthiya Veettil Kunhimoosa and going by the terms thereunder the right passed on to Kunhimoosa was in the nature of mortmain and therefore, upon his death though the properties devolved upon his legal heirs considering the fact that what could be and what was passed was only the inalienable tenure effecting partition and then sale by them cannot be a reason for contending that the investigation in the crime is liable to be terminated at this stage. The precise case of the first respondent is that the property involved is Wakf property. It is then contended by the learned counsel for the first respondent that when there is no dispute with respect to the manner in which the property was derived **Crl.M.(C) No. 1127 of 2012** 7 by Puthiya Veettil Kunhimoosa in the absence of any material to substantiate subsequent accrual of any right to alienate the property, initiation and continuation of criminal proceedings against the petitioners could not be interfered at this stage. 5. In support of the rival contentions both sides relied on different authorities. The learned counsel appearing for the petitioners relied on a decision of the Hon'ble Apex Court in **M/s.Thermax Ltd. & Others v. K.M. Johny & Others** reported in 2011 (4) KLT 87 (SN)(C.No.96) SC. That was a case wherein the challenge was against the forwarding of a complaint for investigation under section 156(3) alleging commission of offences under sections 405, 406, 420 and r/w section 120(B) IPC. It was held by the Hon'ble Apex Court that in a given case if there is only a mere breach of contract the same could not give rise to criminal prosecution for cheating, unless fraudulent or dishonest intention is shown right from the beginning of the transaction. In this case there is no allegation of commission of any offences under section 405 punishable under section 406 IPC. As noticed hereinbefore, in this case the allegation includes one of commission of offences under sections 465, 468 and **Crl.M.(C) No. 1127 of 2012** 8 471 r/w section 120(B), IPC as well besides the one under section 420 IPC. 6. I have already adverted to the common case that the property in question covered by Annexure-A3 and certain other properties were originally belonged to Seethimarakkarakath Alikoya who in and vide Annexure-A4 mortgaged those properties to one Puthiya Veettil Kunhimoosa. The specific case of the first respondent in Annexure-A2 complaint is that on the same day itself, in respect of the property mortgaged the said Puthiya Veettil Kunhimoosa executed a marupattam in favour of the mortgager namely Seethimarakkarakath Alikoya. It is thereafter that Annexure- A6 WAKF deed was executed in the year 1933. Thus, the case of the first respondent is that the properties covered by Annexure-A3 is a Wakf property and he is the moothavalli in respect of that property. The learned counsel appearing for the petitioner vehemently contended that since the petitioners are having dispute relating the execution of the marupattam deed, in otherwords that the property covered by Annexure-A3 is not a Wakf property, those questions could be resolved only by bringing in a competent civil suit before the **Crl.M.(C) No. 1127 of 2012** 9 appropriate civil court. It is in that context that the learned counsel raised the contention that what essentially involved in this case is nothing but a dispute which is purely civil in nature. The allegation in Annexure-A2 complaint assumes relevance in this context. Going by Annexure-A2 the very case of the first respondent is that going by the admitted case discernible from Annexure-A4 document and the subsequent transactions specifically referred to in the complaint, it is evident that the property covered by Annexure-A3 was part and parcel of the property which was mortgaged as per Annexure-A4 and the petitioners 1 to 11 got no transferable right over the property covered by Annexure-A3 at any point of time and they effected sale of the property knowing fully that the said property is a Wakf property. They made forged documents and ultimately effected transaction of the property covered by Annexure-A3 in favour of petitioner 12 to 17. Even if it is stated that there is insufficiency of allegations to attract an offence under section 420 it cannot be said that there is absolute absence of allegations to satisfy the ingredients of an offence under sections 465, 468 or 471 and at any rate, for the purpose of continuing with the investigation in Crime No, 387 of 2011 **Crl.M.(C) No. 1127 of 2012** 10 of Kasaba Police Station, Kozhikode. It is contended and that the correctness or otherwise of such allegations are matters for investigation. There is also an allegation of commission of offence punishable under section 120(B) of the IPC. True that, in order to bring home a charge of conspiracy within the ambit of section 120(B) it is necessary to establish that there was an agreement between the parties for doing an unlawful offence. Such an allegation, though lacking details, is there in the complaint. When once a complaint carries allegations which prima facie satisfy the ingredients to constitute certain offences and when it is found that it is a cognizable case the learned magistrate is empowered to forward the same for investigation under section 156(3) Cr.P.C. The learned counsel appearing for the first respondent contended that merely because a set of facts constitute dispute having civil nature as also criminal offence it could not be said that the concerned party would be entitled only to institute a civil dispute. To buttress the said position the learned counsel relied on decisions of the Hon'ble Apex in **State of Madhya Pradesh v. Surendra Kori** reported in (2012) 10 SCC 155, **Tamil Nadu Mercantile Bank Ltd. v. State Through** **Crl.M.(C) No. 1127 of 2012** 11 **Deputy Superintendent of Police and Another** reported in 2014 (3) SCC 755 and also a decision of this Court in **Bhaskaran and Others v. State of Kerala and Others** reported in 2013 (3) KHC 666. The decision in Tamilnadu Mercantile bank is relied on to contend that it is only when a dispute is purely civil in nature and a party still chooses to initiate criminal proceedings the question of quashment of criminal proceedings would arise. The dictum laid down therein is that only if adequate materials are available to show the dispute involved is purely of civil nature and that the initiation of the criminal proceedings is nothing but an abuse of process of court High Court would be justified in quashing the complaint and terminate the criminal proceedings. In the decision of **Surendra Kori** 's case the Hon'ble Apex Court held that the High Court should normally refrain from giving prima facie decision and quashing the proceedings in a case where the facts are incomplete and where evidence has not been collected and produced and the issues involved, whether factual or legal, are of wide magnitude and incapable of being seen the true perspective without sufficient materials being placed on record. It is further held there in that in such cases keeping in view of magnitude **Crl.M.(C) No. 1127 of 2012** 12 of crime, the number of documents allegedly executed fraudulently the involvement of respondents could be decided only after giving opportunity to prosecution. Of course, that was a case wherein a charge sheet was laid. True that, in this case such a stage has not reached. In otherwords, it is for the purpose of collection of such materials, if any, by conducting an investigation that the complaint was forwarded by the learned Chief Judicial Magistrate for investigation under section 156(3) Cr.P.C. The question when a complaint carries allegation of commission of cognizable offence is made whether it will be conducive to interfere with the investigation and to terminate the investigation at the incipient stage, was considered by this Court in **Bhaskaran** 's case (supra). In that case it was held that when a complaint carries allegations of commission of a cognizable offences especially regarding forgery of a document it is essentially a matter for investigation and such matters could not be stalled at the incipient stage. True that, in this case evidence has not been collected and produced so far. Essentially, it is for that purpose that Annexure-A2 complaint was forwarded for investigation under section 156(3) Cr.P.C. The learned counsel for the petitioners **Crl.M.(C) No. 1127 of 2012** 13 contended that going by the provisions under section 67 and 69 of the Transfer of Properties Act, 1882 there are circumstance where a mortgagee could obtain the right to effect the sale of the mortgaged property. There is no material before this Court to arrive at any conclusion that such a right was accrued by the vendees of the petitioners or Puthiya Veettil Kunhimoosa or his legal heirs. This Court will not be justified to hold that merely because of a series of transactions of the property in question that the dispute involved is purely one of civil in nature. That is a matter which could be decided, later, after collection of the materials, if any. In the light of the decision in **Bhaskaran** 's case (supra) the said action on the part of the Chief Judicial Magistrate in forwarding application for investigation under section 156(3) Cr.P.C cannot be said to be illegal and consequently the action in registering a crime also cannot be said to be illegal. When once the crime is registered the competent police officer is bound to lay a final report after the completion of the investigation in terms of the provisions under section 173(2), Cr.P.C. before the court having competency to take cognizance of the offence concerned. Certainly, after the laying of the final report if it is one 14 ## **Crl.M.(C) No. 1127 of 2012** carrying accusation of commission of offence/offences it will be open to the petitioners to avail all available remedies against it, in accordance with law. It will also be open to the petitioners to take up the plea of discharge in such eventuality at the appropriate stage. Without any prejudice to such rights available to the petitioners under law and subject to the above, this Crl.M.C is dismissed. Sd/- ## **C.T.RAVIKUMAR,JUDGE.** dlk