PRASANNAKUMAR P., VINAYACHANDRAN, and VISWANATHAN N. v. THE STATE OF KERALA AND APPUKUTTAN NAIR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938** ## **Crl.MC.No. 2250 of 2013 ()** ## **---------------------------** ## **C.C.NO.1851/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT, AMBALAPUZHA CRIME NO. 33/2012 OF AMBALAPPUZHA POLICE STATION.** ## **PETITIONER(S)/ACCUSED:** **--------------------------------------** ## **1. PRASANNAKUMAR P., AGED 63 YEARS,** - **S/O.PARAMESWARAN PILLA, R/O.C-13, ARONKAR APARTMENT, MERCIS VARDEM, VASCODAGAMA MARMA GOA, SOUTH GOA-403802.** **2. VINAYACHANDRAN, AGED 54 YEARS,** - **S/O.NARAYANAN NAIR, BRINDAVAN, AAMAYIDA, AMBALAPUZHA.** **3. VISWANATHAN.N., AGED 53 YEARS, ANJANAM, KOMANA, AMBALAPUZHA.** ## **BY ADV. SRI.A.X.VARGHESE** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **---------------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, AMBALAPUZHA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 682031.** **2. APPUKUTTAN NAIR, AGED 65 YEARS,** **S/O.MADHAVAN NAIR, SREESHAILAM, AAMAYIDA, AMBALAPUZHA-688561.** **R1 BY PUBLIC PROSECUTOR SMT.V.P.SATHI R2 BY ADV.SMT.A.SREEKALA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.03.2016, THE COURT ON 31-03-2016 PASSED THE FOLLOWING:** ## **Crl.MC.No. 2250 of 2013 ()** ## **------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------ANNEXURE-A1: CERTIFIED COPY OF THE F.I.R. IN CRIME 33/2012 ALONG WITH C.M.P.7201/2011.** **ANNEXURE-A2: CERTIFIED COPY OF THE FINAL REPORT ALONG WITH THE STATEMENT OF THE WITNESSES IN CRIME 33/2012 OF AMBALAPUZHA POLICE STATION.** **RESPONDENT(S)' EXHIBITS** **----------------------------------------** **NIL** **//True Copy//** **P.A. To Judge** **Bb** ## **RAJA VIJAYARAGHAVAN V, J. -------------------------------------------------------Crl.M.C.No.2250 of 2013 -------------------------------------------------------Dated this the 31[st] day of March, 2016** ## **O R D E R** - 1.The Accused Nos.1 to 3 in C.C.No.1851/2012 on the file of the Judicial First Class Magistrate Court, Ambalapuzha are before this Court seeking invocation of powers under S.482 of the Cr.P.C. to quash the criminal proceedings against them in the said matter. As per the charge, the petitioners are alleged to have committed offence punishable under sections 406, 109, 120 B r/w section 34 of the IPC. - 2.The case of the prosecution as is revealed from the final report is as follows:- - The de facto complainant and the accused Nos. 2 and 3 who are brothers, were close friends. The wife of the 1[st] accused was in title and possession of 46 cents of land comprised in Karumady village. A power of attorney was Crl.M.C.No.2250 of 2013 : 2 : executed in favor of the 1[st] accused to effect sale of the said property. The de facto complainant and the accused Nos.2 and 3 expressed their interest to the 1[st] accused. When their terms matched, it was mutually decided to execute an agreement for sale in favor of one Narayanan Nair, a mutual friend of the parties. The agreement was executed on 06.01.2011. It was agreed that the sale deed would be registered in three months in the name of the de facto complainant and accused No 2 and 3. By way of advance, a sum of Rs.2 lakhs was handed over by the aforesaid Narayanan Nair to the 1[st] accused, out of which the de facto complainant had contributed Rs.1 lakh. In pursuance to the agreement for sale, the property was measured by an authorised surveyor. It was agreed mutually that the property would be split into three after earmarking space for a pathway. It is asserted that the de facto complainant had handed over a cheque for a sum of Rs.4,50,000/- drawn at the SBI, Ambalapuzha branch to Crl.M.C.No.2250 of 2013 : 3 : the 1[st] accused and a sum of Rs.4,02,586/- was paid by way of cash in addition to the advance already paid. On 28.03.2011, the 2[nd] respondent went to the Sub Registry Office for getting the sale deed executed and on the said date, it is alleged that the 3[rd] accused raised some objections and the registration of the sale deed was deferred. It is further alleged in the complaint that on 14.07.2011, the accused had entered into a conspiracy and in pursuance to the same, the sale deed was executed in favour of the 2[nd] accused and one Unnikrishnan, who is a colleague of the 2[nd] accused. It is further alleged in the complaint that the petitioners with malicious intent had executed the sale deed at the Alappuzha Sub Registry Office to deceive the de facto complainant. Finally, on 27.8.2011, a sum of Rs.9,63,000/- was deposited by the 1[st] accused in the account of the de facto complainant. According to the de facto complainant, he had entrusted the petitioners with money for the execution of the sale Crl.M.C.No.2250 of 2013 : 4 : deed and they had dishonestly misappropriated and converted the same to their own use in violation to the understanding entered into between them and thus committed the offence punishable under S.406, 109 , 120 B r/w section 34 of the IPC. - 3.The learned Magistrate had ordered investigation by the Police and on conclusion of investigation Annexure 2 final report has been laid before the Jurisdictional Magistrate. - 4.The learned counsel appearing for the petitioners would submit that that an impartial reading of Annexure A1 complaint preferred by the 2[nd] respondent would not reveal the ingredients of the offence charged against the petitioners. According to the learned counsel, the matter is essentially of a civil nature, and it has been given a cloak of a criminal offence. It is further submitted relying on the judgment of the Apex Court in **Dalip Kaur and Ors. Vs. Jagnar Singh and Anr [AIR 2009 SC 3191]** that as the dispute was having the flavour of a civil Crl.M.C.No.2250 of 2013 : 5 : nature, directing the petitioners to undergo the ordeal of a criminal trial would result in unnecessary hardship. 5.Per contra, the learned counsel appearing for the 2[nd] respondent would submit that a perusal of the complaint and also the final report laid before the learned Magistrate would reveal that the necessary ingredients of the offence are all present in the complaint. It is pointed out that the 1[st] accused had accepted a sum of Rs.1 lakh by way of cheque at the time of execution of sale. Later, a sum of Rs.4.5 lakhs was handed over to the 1[st] petitioner by way of cheque and a sum of Rs.4,02,586/- was handed over by way of cash. The learned counsel also submitted that stamp paper worth Rs.30,000/- was purchased by the 2[nd] respondent in the name of his daughter which reveals that he was under the bona fide impression that the sale deed would be executed in his daughters favor. According to the learned counsel, it is impossible to bring out the guilty intent at this stage and only at the stage of trial will the Crl.M.C.No.2250 of 2013 : 6 : de facto complainant be able to bring out all these aspects so as to make out an offence as against the petitioners. According to the learned counsel, this is not a fit case where the powers under section 482 is to be exercised to - bring the criminal proceedings to a premature termination. - 6.I have heard the rival submissions and have perused the complaint and also the final report laid before the learned magistrate. - 7.The only question is whether the averments in the complaint taken at their face value makes out the ingredients of the criminal offence or not. If it does, this Court will not be justified in quashing the proceedings at the threshold itself. - 8.The allegation against the petitioners is that they have criminally conspired together and have committed criminal Breach of trust. S.405 IPC deals with criminal breach of trust. A careful reading of S.405 of the IPC reveals that Crl.M.C.No.2250 of 2013 : 7 : ## criminal breach of trust involves the following ingredients: _“(a) a person should have been entrusted with property, or entrusted with dominion over property;_ _(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so;_ _(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.”_ 9. S.406 IPC prescribes punishment for criminal breach of trust as defined in S.405 IPC. For the offence punishable under S.406 IPC, prosecution must prove: “ _(i) that the accused was entrusted with property or with dominion over it and_ _(ii) that he_ _(a) misappropriated it, or_ _(b) converted it to his own use, or_ _(c) used it, or_ _(d) disposed of it._ _The gist of the offence is misappropriation done in a dishonest manner. There are two distinct parts of the said offence. The first involves the fact of entrustment, wherein an obligation arises in relation to the property over which dominion or control is acquired. The second part deals with_ Crl.M.C.No.2250 of 2013 : 8 : _misappropriation which should be contrary to the terms of the obligation which is created.”_ 10. After having closely analysed the allegations in the complaint and also the charge sheet laid before the Magistrate, I am of the view that the contention raised by the learned counsel appearing for the petitioners that the complaint is totally bereft of the ingredients of a criminal breach of trust is without merit. Merely because of the fact that the transaction is having the nature of a civil transaction it will not be denuded of its criminal outfit. The investigating officer has exhaustively conducted investigation and have cited not less than 12 witnesses to prove the charge. This Court, while exercising powers under section 482 of the Code cannot undertake the process of sifting evidence so as to adjudicate the liability or otherwise of a person against whom an allegation has been made, on the sole premise that abuse of process of the Court will result. 11. It is the admitted case of the parties that certain sum Crl.M.C.No.2250 of 2013 : 9 : of money was entrusted by the de facto complainant with the 1[st] accused in the month of March 2011, and after executing the sale deed allegedly in violation of the understanding between the parties, the said amount was repaid as a lump sum on 27.8.2011. Merely because of the fact that a civil suit can be maintained is no reason to hold that a criminal complaint is not maintainable. 12. In **Trisuns Chemical Industry v. Rajesh Agarwal and others [1999 (8) SCC 686 ; 1999 CRI.L.J.4325],** the Apex Court held thus : _"Quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The provision incorporated in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act, which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre emption of such investigation would be justified only in a very extreme cases."_ Crl.M.C.No.2250 of 2013 : 10 : 13. **Indian Oil Corporation vs. NEPC India Ltd. and Others [2006 (6) SCC 736]** , the Apex Court had summarized the principles relating to exercise of jurisdiction under S.482 Cr.P.C. to quash complaints and criminal proceedings as under: - _"The principles relating to exercise of jurisdiction under S.482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, 1988 (1) SCC 692; State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335; Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 (6) SCC 194; Central Bureau of Investigation v. Duncans Agro Industries Ltd., 1996 (5) SCC 591; State of Bihar v. Rajendra Agrawalla, 1996 (8) SCC 164; Rajesh Bajaj v. State NCT of Delhi, 1999 (3) SCC 259; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., 2000 (3) SCC 269; Hridaya Ranjan Prasad Verma v. State of Bihar, 2000 (4) SCC 168; M. Krishnan v. Vijay Singh, 2001 (8) SCC 645 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, 2005 (1) SCC 122. The principles, relevant to our purpose are:_ _(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused._ _For this purpose, the complaint has to be examined as a whole, but without examining the merit merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability_ Crl.M.C.No.2250 of 2013 : 11 : _or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint._ _(ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides / malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable._ _(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution._ _(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence._ _(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c)a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."_ 14. After having undertaken a detailed evaluation of the materials and after hearing the submissions of the learned Counsel, I am not satisfied that the petitioners have made Crl.M.C.No.2250 of 2013 : 12 : out a case for invocation of powers under Section 482 of the Code. The petitioners have failed to satisfy the tests laid down by the Apex Court. The Criminal Miscellaneous Case is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE.** Bb _[True copy] P.A to Judge_