Pareed and others v. State of Kerala and others

Crl.M.C.No.5554/2019 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943_ _CRL.MC NO. 5554 OF 2019_ _CRIME NO.700/2017 OF Vadakkanchery Police Station, Thrissur AGAINST THE ORDER/JUDGMENT IN CC 61/2018 OF JUDICIAL MAGISTRATE OF_ _FIRST CLASS, VADAKKANCHERRY_ ## _PETITIONERS/ACCUSED NOS.1 TO 8:_ _1 PAREED, AGED 55 YEARS, S/O.MOIDU, ARANGATHUPARAMBIL HOUSE, KUMARANELLUR, THALAPPILLY TALUK, THRISSUR._ _2 ABOOBACKER, AGED 43 YEARS, S/O.POCKAR HAJI, KULAMBIL PADINJAKKARA HOUSE, ARIYOOR THEKKUMURI,OTTAPPALAM. 3 SHEMEERA, AGED 33 YEARS, W/O.ABOOBACKER, KULAMBIL PADINJAKKARA HOUSE, ARIYOOR THEKKUMURI, OTTAPPALAM._ _4 ABDUL GAFOOR, AGED 64 YEARS, S/O.ABOOBACKER,THODENGAL HOUSE, ARIPRA DESOM, VALAMPOOR VILLAGE, PERINTHALMANNA TALUK._ _5 KHADEEJA, AGED 60 YEARS, W/O.ABDUL GAFOOR, THODENGAL HOUSE, ARIPRA DESOM, VALAMPOOR VILLAGE, PERINTHALMANNA TALUK._ _6 NABEESA, AGED 45 YEARS, W/O.PAREED, ARANGATHUPARAMBIL HOUSE, KUMARANELLUR,THALAPPILLY TALUK, THRISSUR._ Crl.M.C.No.5554/2019 2 _7 UMMACHU, AGED 68 YEARS, D/O.KUNJAPPU,PATTACHALIL, CHITTANDA VILLAGE, THALAPPILLY TALUK._ _8 RASHEEDA, AGED 33 YEARS, W/O.UMMER, PATTACHALIL, CHITTANDA VILLAGE, THALAPPILLY TALUK._ - _9 DR.HAJARA, AGED 28 YEARS, D/O.PAREED, ARANGATHUPARAMBIL HOUSE, KUMARANELLUR,THALAPPILLY TALUK, THRISSUR._ _BY ADVS. K.P.SURESH KUMAR SRI.K.C.VISWAMBHARAN_ ## _RESPONDENTS/COMPLAINANTS:_ - _1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31._ - _2 S.I.OF POLICE, WADAKKANCHERY POLICE STATION, WADAKKANCHERY, THRISSUR-680 582._ - _3 SHAIK SHANAVAS, AGED 50 YEARS, S/O.SHAIK KHADAR, CHENNOTHPARAMBIL HOUSE, WADAKKANCHERY VILLAGE, MANGALAM DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT-679 301._ - _4 JOSEPH, AGED 57 YEARS, S/O.KORATH, KARANJIKUDIYIL HOUSE, THEKKUMKKARA VILLAGE, POOMALA DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT-680 581._ Crl.M.C.No.5554/2019 3 _5 SATHISH KUMAR, AGED 40 YEARS, S/O.KARUNAKARAN, MOZHIKULANGARA HOUSE, THEKKUMKARA VILLAGE, KALLEMPPARA DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT-680 581._ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON_ _11.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.5554/2019 4 **O R D E R** The petitioners are the accused Nos.1 to 9 in C.C.No.61 of 2018 of Judicial First Class Magistrate Court, Wadakkanchery. The aforesaid case arises from crime No.700 of 2017 of Wadakkanchery Police Station, registered for the offences alleged under Sections 406 and 420 read with Section 34 IPC. 2. The allegation against the petitioners is that they have entered into an agreement for the sale of their property in favour of the respondents 3 to 5. The total extent of the property was 7 acres and 21 cents, and the sale price fixed was Rs.44,000/- per cent. The aforesaid agreement was entered into on 31.03.2014, and as per the contractual obligations, the sale deed was to be executed on or before 30.11.2014. Towards the advance sale consideration, the petitioners collected an amount of Rs.21,00,000/-. The grievance highlighted by respondents 3 to 5 in their complaint was that the petitioners failed to execute the sale deed or refund the amount they collected. Based on the same, Annexure-1 FIR was registered, and after completing the investigation thereon, police submitted Annexure-2 final report alleging offences punishable under Section 406 and 420 read with Crl.M.C.No.5554/2019 5 Section 34 IPC. The Judicial First Class Magistrate Court, Wadakkanchery, has taken cognizance thereon, and the same is now pending as C.C.No.61 of 2018. This Crl.M.C. is filed praying for quashing all further proceedings thereon. 3. Heard Sri.K.P.Suresh Kumar, learned counsel for the petitioner, Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. Even though notice was served upon the respondents 3 to 5, as of now, there is no appearance for them. 4. The main contention put forward by the learned counsel for the petitioner is that the allegations contained in Annexure-2 final report do not attract the offence alleged against him. The ground on which the aforesaid contention raised by the petitioner is that the primary dispute is civil in nature. The learned counsel for the petitioner points out that, respondents 3 to 5 have already filed O.S.No.177 of 2017 before the Sub Court, Thrissur, for specific performance of a contract with an alternate prayer for the return of advance amount. It is also submitted that respondents 3 to 5, who are the plaintiffs in the aforesaid suit have not remitted the Balance Court Fee, and the suit is pending consideration. It is in this background, this Crl.M.C. is filed Crl.M.C.No.5554/2019 6 seeking to quash the proceedings against the petitioners. The learned Public Prosecutor would oppose the aforesaid prayer. 5. The only question that arises here is whether the invocation of powers of this Court under Section 482 Cr.P.C is warranted or not. The primary contention put forward by the learned counsel for the petitioner is that the dispute is civil in nature, and there are no ingredients for attracting the offences under Section 406 and 420 IPC. Annexure-3 is the agreement entered between the parties. The perusal of the same would indicate that the petitioners were under an obligation to execute the sale deed within a period of 8 months from the date of execution, upon respondents 3 to 5 making the payment of the balance sale consideration. The amount collected by them in advance was Rs.21,00,000/-. 6. Going by the materials available on record, it is not discernible whether the respondents 3 to 5 conveyed their willingness to pay the said amount or any payment was actually made towards the balance consideration within the time stipulated. The civil suit seeking to enforce the rights arising from the contract was also submitted much after the expiry of the period stipulated in the agreement for execution of the sale deed. Crl.M.C.No.5554/2019 7 When all the materials are examined, it is evident that the dispute is only about the non-execution of the document for conveying the title over the properties. On perusal of the specific averments in the final report, it can be seen that no materials indicating any dishonest intention on the part of the petitioners herein can be seen. Under no stretch of imagination it can be treated as an act attracting any culpability on the petitioners herein. There is indeed an allegation in the final report that the petitioners later mortgaged the subject properties in a bank to secure a loan that they had obtained. However, it is pointed out that the aforesaid transaction took place after the period prescribed in the aforesaid agreement. Therefore, at the time of mortgage, the petitioners were prima facie not under any legal obligation to convey the property, as no offer or willingness was made by respondents 3 to 5 for performing their part. In such circumstances, In **Govind Prasad Kejriwal v. State of Bihar [2020 (2) KLT 1167(SC)]** _,_ the Honourable Supreme Court categorically observed that when the dispute is predominantly civil in nature, the High Court can invoke the powers under Section 482 Cr.P.C. and quash the same. On perusal of the materials, I am convinced that this is a case coming within that category and, therefore, is a fit case for Crl.M.C.No.5554/2019 8 invoking the inherent powers of this Court. In the result, this Crl. M.C is allowed. The Annexure-2 final report in Crime No.700 of 2017 of Wadakkanchery Police Station and all further proceedings in C.C.No.61 of 2018 on the file of the Judicial First Class Magistrate Court, Wadakkanchery are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/14.3.22 Crl.M.C.No.5554/2019 9 ## _APPENDIX OF CRL.MC 5554/2019_ |_PETITIONER_|_ANNEXURES_| |---|---| |_ANNEXURE 1_|_CERTIFIED COPY OF THE FIRST INFORMATION_| ||_REPORT OF THE JUDICIAL FIRST CLASS_| ||_MAGISTRATE COURT,WADAKKANCHERY._| |_ANNEXURE 2_|_CERTIFIED COPY OF THE FINAL REPORT FILED_| ||_BY THE SUB INSPECTOR OF_| ||_POLICE,WADAKKANCHERY IN CRIME NO.700/2017_| ||_WHICH WAS TAKEN ON FILE AS C.C.61 OF 2018_| ||_BY THE JUDICIAL FIRST CLASS_| ||_MAGISTRATE,WADAKKANCHERY._| |_ANNEXURE 3_|_PHOTOCOPY OF THE AGREEMENT DATED_| ||_31.03.2014._| |_ANNEXURE 4_|_PHOTOCOPY OF THE PLAINT IN O.S.177/2017_| ||_OF THE SUB COURT,THRISSUR._| |_ANNEXURE 5_|_PHOTOCOPY OF THE WRITTEN STATEMENT DATED_| ||_11.08.2018._|