Radhamani v. Saroja Sundaram @ Sarojam, Sundaram Pillai and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934 CRL.A.No. 1860 of 2009 ( ) -------------------------AGAINST THE JUDGMENT DATED 3-8-2007 IN CC.2/2001 of J.M.F.C.-II, NEDUMANGAD APPELLANT(S)/COMPLAINANT: ------------------------ RADHAMANI, S.R.NIVAS, THEVARUKUZHY PULIPPARA , KARIPPOOR VILLAGE, NEDUMANGAD TALUK. BY ADVS.SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT(S)/ACCUSED & STATE: ------------------------------ 1. SAROJA SUNDARAM @ SAROJAM - D/O.VALLIYAMMAL, ANU BHAVAN, CHEKKAKONAM MURI KARAKULAM VILLAGE, VATTIYOORKAVU FROM KOTTUYILAKAM HOUSE, POTHUJANAM LANE, PULLIYIL MURI KADAKAMPALLI VILLAGE. 2. SUNDARAM PILLAI @ RAMASWAMI PILLAI ANU BHAVAN, CHEKKAKONAM MURI, KARAKULAM VILLAGE FROM ANU BHAVAN, THEVARUKUZHY, PULIPPARA KARIPOOR VILLAGE. 3. STATE OF KERALA REP. BY - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.V.KUNHIKRISHNAN-R1, 2 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR, J. ========================== CRL.APPEAL. No.1860 OF 2009 ==========================** Dated this the 3[rd] day of January, 2013 ## **JUDGMENT** This appeal is directed against the judgment dated 3.8.2007 in C.C.No.2 of 2001 passed by the Court of Judicial First Class Magistrate-II, Nedumangad. The appellant was the complainant and respondents 1 and 2 were the respondents therein. The appellant filed the private complaint alleging commission of offences punishable under sections 120B and 420 read with section 34 of Indian Penal Code against respondents 1 and 2/accused 1 and 2 and ultimately the case ended in their acquittal. 2. The case of the prosecution was as follows:- A criminal conspiracy to cheat the complainant and her husband was hatched between the accused and in furtherance of the common **Crl.A.1860/09** 2 intention to cheat them and to make unlawful gain for themselves the accused approached the complainant and informed her of their intention to sell 82.500 cents of property comprised in survey No.704/1 in Karipoor village in Nedumangad Taluk, standing in the name of the first accused and her two minor children. The appellant was told that consent of the minor children were not required for effecting the sale and the sale consideration would be used for purchasing property in the name of the minors and also for conducting the already fixed marriage of their daughter. Believing their words, the appellant and her husband purchased the aforesaid property from the first accused/first respondent for a total sale consideration of Rs.4,95,000/- as per Ext.P1 sale deed No.4908/94 of Sub Registry, Nedumangad and thereafter, made several improvements in the property including construction of a building. According to the appellant, the market value of the property underwent a considerable hike and the present value of the said property would be more than **Crl.A.1860/09** 3 Rs.30 lakhs. The second accused who is the husband of the first accused is the attesting witness to Ext.P1. Contrary to the promise, the accused did not purchase any property in the name of the minor children or used the sale consideration for the marriage of their daughter whilst, purchased property in their own names and according to the appellant this was done by the accused with the intention to make unlawful gain for themselves and to make unlawful loss to appellant and her husband. On obtaining majority, the children of the accused filed O.S.No.524/1997 before the Munsiff Court, Nedumangad and in that suit ⅔ right of the children was upheld and decreed. The act of the accused had caused a loss to the tune of more than Rs.30,00,000/- to the complainant and her husband and as such, their acts are punishable under sections 120B and 420 read with section 34 IPC. 3.After complying with the formalities, the evidence of the **Crl.A.1860/09** 4 complainant was taken. PWs 1 to 5 were examined and Exts.P1 to P10 were marked on her side. Thereafter the accused appeared on summons. Charge was framed against them under sections 120B and 420 read with section 34 IPC, after complying with the procedures. It was read over and explained to them and they pleaded not guilty. Thereupon, the complainant and her witnesses were recalled and cross examined. After the closing of the prosecution evidence, accused 1 and 2 viz., respondents 1 and 2 were questioned under section 313 of the Code of Criminal Procedure. They denied all the incriminating circumstances put to them. Finding that it was not a fit case for acquittal, they were asked to enter on their defence and thereupon, they adduced oral and documentary evidence. DWs 1 to 3 were examined on the side of the defence and Exts.D1 to D7(a) were also got marked. After careful evaluation of the evidence on record, the trial Court found that the complainant had failed to establish the offences alleged against the accused and consequently, they were **Crl.A.1860/09** 5 found not guilty and acquitted under section 248(1) Cr.P.C. This appeal is filed against the judgment in C.C.No.2 of 2001 of the Court of Judicial First Class Magistrate-II, Nedumangad. 4. Certain indisputable and undisputed facts have to be taken note of before scanning the evidence on record. Admittedly, the existence of minor's right over the property covered under Ext.P1 viz., ⅔ of its right was made known to the appellant prior to the very execution of Ext.P1 sale deed. Even after coming to know about the existence of minor's right over the property, no permission was sought for from the District Court concerned either for entering into an agreement for sale or for executing Ext.P1 sale deed. The appellant feigns ignorance about such legal formalities and even if it is taken that there was real ignorance on their part it cannot have any relevance or significance in view of the salutary maxim _ignorantia legis neminem excusat_ means ignorance of law excuses nobody as held by **Crl.A.1860/09** 6 the Hon'ble Supreme Court in **Basheshar Nath v. CIT** reported in **AIR 1959 SC 149.** Whatever that be, it is a fact that the property having an extent of 82.500 cents comprised in survey No.704/1 in Karipoor village in Nedumangad Taluk was purchased by the appellant and her husband as per Ext.P1. The delation is that the accused 1 and 2 made the appellant and her husband to believe that no consent from the minors was required for effecting such sale and that the sale consideration would be used for the purchase of properties in the name of the minors and also for conducting the marriage of their daughter which was fixed earlier. The complainant was examined as PW1. She deposed that accused 1 and 2 made her believe that no consent from the minors is required for the sale of the property and further that the sale consideration would be used for purchasing property in the name of minors and also for conducting marriage of their daughter. It is also deposed that Ext.P1 sale deed was executed believing the said words and contrary to their promise, accused 1 and **Crl.A.1860/09** 7 2/respondents 1 and 2 herein did not purchase property in the name of the minors or used the sale consideration for their benefits and also for the marriage of their daughter. PW4 is the husband of PW1 and PW5 is her brother. They tendered evidence on the same lines of PW1. PW2 and PW3 are the children of the accused and they would depose that they got right over the property sold by the accused and the sale consideration was not used for their benefit. True that it is in evidence that subsequent to the execution of Ext.P1, the children of respondents 1 and 2 viz., PW2 and PW3 on attainment of majority filed O.S.No.524 of 1997 before the Munsiff Court Nedumangad against the appellant and the accused and a preliminary decree was passed whereby their ⅔ right over the said property was upheld. Exts.P5 and P6 are the sale deeds by which the accused purchased properties in their names. Ext.P8 would reveal that the appellant herein and her husband filed O.S.649 of 1997 before Munsiff Court, Nedumangad and as per the same viz., Ext.P8 decree herein were **Crl.A.1860/09** 8 permanently restrained by a decree of permanent prohibitory injunction from alienating or encumbering the property given as security in Ext.P1 sale deed till they are compensated for the loss of their right over the ⅔ share in the property covered by Ext.P1 sale deed pursuant to the preliminary decree in O.S.524 of 1997. Exts.P9 and P10 are the copies of the voters list and ration card produced for showing that the accused, PW3 and PW4 are residing in the same house. On the side of accused 1 and 2, Taluk Supply Officer, Nedumangad was examined as DW1 and Ext.D5 was marked through him. Ext.D5 would reveal the address of PW2 and PW3 as Narichiliode, Kodivilakathe Veedu, Nedumangad and it is produced to show that PW2 and PW3 are not residing with the accused. Exts.D7 and D7(a) would show that the marriage of PW3 took place on 18.3.1994 viz., much prior to Ext.P1 sale deed dated 14.11.1994. Evidently, the appellant and her husband resorted to civil remedy prior to the filing of the complaint that culminated in the impugned **Crl.A.1860/09** 9 judgment. In fact, Ext.P1 itself contained an indemnity clause to the effect that in case of any loss caused to the vendee, the vendor viz., the first respondent herein would be liable and in the event of such loss the properties of the first respondent herein, scheduled in Ext.P1, could be proceeded against to make good the loss. The said clause specifically provided for making good the loss on account of any civil dispute or verdict at the instance of minors. The said clause has been extracted in the impugned judgment. As noted earlier, as per Ext.P8, the complainant and her husband obtained a decree against the first respondent and the said properties scheduled in Ext.P1. The undisputed and indisputable facts as also the oral and documentary evidence mentioned above were considered by the learned Magistrate while passing the impugned judgment. There is no dispute with respect to the aforesaid factual aspects as also to the evidence let in relating those aspects. **Crl.A.1860/09** 10 5.On the evidence revealing the aforesaid aspects, trial Court considered the question whether the ingredients to constitute the offence under sections 120B and 420 read with section 34 IPC would be attracted. The essential ingredients to constitute an offence of criminal conspiracy is the agreement to commit an offence. In the decision in **R.Venkatakrishnan v. Central Bureau of Investigation (2009) 11 SCC 737** , the Hon'ble Supreme Court held that the condition precedent for holding a person guilty of a charge of criminal conspiracy is the existence of an agreement between two or more persons and the agreement must relate to doing of or causing to be done either an illegal act or an act which is not illegal but is done by illegal means. I may now, refer to the ingredients for the offence under section 420: Deception of any person either by making force or misleading representation or by other action or omission, fraudulent or dishonest inducement of that person either to deliver any property or intentional inducement of consent that any person shall retain the **Crl.A.1860/09** 11 property or to intentional inducement of that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or hurt to that person in body, mind, reputation or property. The trial Court referred to the decision of the Hon'ble Supreme Court in **State of Kerala v. A. Pareethu Pillai** to remind itself of the law on the point. In short, what can be deduced from the provisions and also the decisions referred supra, is that to attract the offence alleged against respondents 1 and 2, it must be established that a wrongful intention or guilt which would fall under the aforesaid sections was in existence at the time of making of the initial promise. Certainly, such dishonest intention cannot be inferred from the mere fact that they could not subsequently fulfil the promise. In this case, admittedly, the existence of minor's right over the property covered by Ext.P1 was made known to the appellant. There is no case for the appellant that she and her husband were made to purchase the property concealing **Crl.A.1860/09** 12 the said aspect. Admittedly and evidently, the involvement of minor's right over the property covered by Ext.P1 was made known to the complainant before the execution of Ext.P1 sale deed. It is also in evidence that even after coming to know about the existence of minor's right, they had not followed the mandatory procedures to effect a valid sale of the property whereon minors got right. True that it is also in evidence that on attaining majority, the minor children of respondents 1 and 2 approached the competent civil court to establish their right over the property and in fact, they were succeeded in that attempt. The question to be considered is whether the finding of the trial court that the appellant herein had failed to establish the necessary ingredients to constitute an offence punishable under sections 120B and 420 against respondents 1 and 2. The case of the appellant is that respondents 1 and 2 failed to keep their promise that the sale consideration would be used for the benefit of the minors and that sale consideration would be used for conducting the marriage of their **Crl.A.1860/09** 13 daughter. How such allegations even if proved would constitute ingredients to attract the aforesaid offences alleged against them? At any rate, as rightly held by the trial court, the complainant/appellant failed to establish that the sale of property covered by Ext.P1 was sold to the appellant without disclosing the existence of right of minors over the same. The trial Court found that the transaction between the parties do not reveal exercise of dishonest inducement or deceit by the accused. The relevant indemnity clause in Ext.P1 was also extracted and considered by the trial court. Indisputably, it speaks of in specific terms regarding the liability of the first accused to make good the loss, if any, sustained on account of involvement of minor's right. Evidently, the appellant and her husband approached the competent civil court, as well. There can be little doubt about the position that a judgment of acquittal invites interference only if there is palpable perverse appreciation of evidence on record by the trial court or there is error of law vitiating the judgment. No case has been brought out **Crl.A.1860/09** 14 by the appellant warranting admission of the case. In this case, after appreciating the evidence on record, I have no hesitation to hold that the trial court has rightly come to the conclusion that the appellant herein had failed to establish the necessary ingredients to attract an offence punishable under sections 120B, 420 read with section 34 IPC against respondents 1 and 2. In such circumstances, the judgment dated 3.8.2007 in C.C.No.2 of 2001 of the Court of Judicial First Class Magistrate-II, Nedumangad whereby the accused were found not guilty under section 248(1) Cr.P.C cannot be said to be illegal, perverse warranting appellate interference. This appeal is liable to fail and accordingly, it is dismissed. ## **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** ## **spc/** **Crl.A.1860/09** 15 **C.T. RAVIKUMAR, J.** **Crl.A.1860/09** 16 **JUDGMENT September, 2010**