Ramlath & C.M. Nandan v. Saithalavi and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 14TH DAY OF DECEMBER 2016/23RD AGRAHAYANA, 1938 Crl.MC.No. 931 of 2014 () -------------------------- AGAINST THE ORDER/JUDGMENT IN CC 774/2010 of J.M.F.C.-II,PALAKKAD DATED PETITIONER(S)/ACCUSED NOS.5 & 6: ------------------------------- 1. RAMLATH, AGED 34 YEARS D/O.THARAYIL SAITHALAVI, THENOOR, PARALI, PALAKKAD. 2. C.M.NANDHAN,AGED 39 YEARS K DOCUMENT WRITER, NEDUNGATTIL HOUSE, MANKURUSSI, PALAKKAD. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S)/RESPONDENTS/DEFACTO COMPLAINANT & STATE: ------------------------------------------------------ 1. SAITHALAVI, AGED 63 YEARS S/O.MOOSAKUTTY RAWATHER, PATHIYARAKKAD PARAMBU, EDATHARA AMSOM DESOM, PALAKKAD DISTRICT-678005. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. R1 BY ADV. SRI.SAJAN VARGHEESE K. R1 BY ADV. SRI.LIJU. M.P R BY PUBLIC PROSECUTOR, SRI.M.R.DHANIL THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CONTD... :2: Crl.MC.No. 931 of 2014 () -------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE-A: 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: COPY OF THE FINAL REPORT IN CRIME NO.107/2010 OF MANKARA POLICE STATION IN PALAKKAD DISTRICT. ANNEXURE-C: COPY OF THE WAKF SALE DEED NO.4718/08/I OF SUB REGISTER OFFICE, PARALI. ANNEXURE-D: COPY OF THE REPORT OF THE DISTRICT REGISTRAR GENERAL, PALAKKAD DATED 29.11.2010. ANNEXURE-E: COPY OF THE PATTA ISSUED IN FAVOUR OF AUVA UMMA DATED 17.09.1973. ANNEXURE-F: COPY OF THE RELEVANT PAGE OF BASIC TAX REGISTER OF PARALI-II VILLAGE ISSUED BY ITS VILLAGE OFFICER. ANNEXURE-G: COPY OF THE SKETCH SHOWING THE PROPERTY IN OLD SY.NOS.1A/1B AND IA/1C. RESPONDENT(S)' EXHIBITS : NIL ----------------------- //TRUE COPY// P.A. TO JUDGE SKS ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No. 931 of 2014 ----------------------------------------Dated this the 14[th] day of December, 2016** ## **O R D E R** - 1.This petition is filed under Section 482 of the Code of Criminal Procedure. - 2.The petitioners herein are the accused Nos. 5 and 6 in C.C. - No. 774 of 2011 on the file of the Judicial Magistrate of First Class – II, Palakkad. - 3.It appears that a complaint was originally filed by the 1[st] respondent herein before the Judicial Magistrate of the First Class-II Palakkad, which was forwarded to the Mankara Police Station under section 156 (3) of the Code. Crime No. 107 of 2010 was registered for offences under sections 417, 423, 465, 471 read with section 34 of the IPC. Investigation was conducted by the Sub Inspector of Mankara Police Station and on its culmination, the case was Crl.M.C. No. 931 of 2014 2 referred as essentially civil in nature. Aggrieved by the above, the 1[st] respondent submitted a protest complaint, which was taken cognizance of by the learned Magistrate. When summons was issued to the petitioners, they have approached this Court with a prayer to quash the proceedings . - 4.For a clear understanding, the parties shall be referred to as per their status in Annexure-1 complaint. The petitioners herein, as stated above, are the accused Nos. 5 and 6 in the complaint. - 5.'The accused Nos. 1 and 2 are the children of Kader Rawther and Auva Umma. Auva Ummas' father, Naver Rawther, had gifted property having an extent of 1 acre and 10 cents to Auva Umma by executing a gift deed in the year 1966. The said property was sold to the complainant by Auva Umma by sale deed vide No. 1593 of 1983 of the Parali SRO. Since then, he is in settled Crl.M.C. No. 931 of 2014 3 possession and enjoyment over the same. Later, certain claims were raised in respect of the above property by the 1[st] and 2[nd] accused which led to the institution of various civil suits. While so, by a deed styled as a Wakf deed vide No. 4718 of 2008 of the Parali SRO, the accused Nos. 1 and 2 transferred 31.8 cents of property to the 3[rd] accused, who was the then secretary of the Noorul Huda Mahallu Jama Ath. According to the complainant, the aforesaid 31.8 cents forms part of the 1.10 acres sold to him by Auva Umma. 6.The allegation against 1[st] petitioner is that she had stood as an attestor to the sale deed executed by the 1[st] and 2[nd] accused to the 3[rd] accused. In so far as the 2[nd] petitioner is concerned, it is alleged that he was the document writer cum scribe. It is specifically alleged in the complainant that the petitioners had committed the acts alleged in furtherance of the common intention with the principal Crl.M.C. No. 931 of 2014 4 accused to cause wrongful loss to the complainant. - 7.Heard the learned counsel appearing for the petitioner, 1[st] respondent as well as the learned Public Prosecutor. 8.The learned counsel appearing for the petitioners submitted that the proceedings against the 4[th] accused, who stands in the same footing as the 1[st] petitioner herein has been quashed by this Court by order dated 16.1.2014 in Crl .M.C. No.3625 of 2012. It was specifically held that the prosecution of an attesting witness for this offence is clearly an abuse of process of the Court. In that view of the matter, according to the learned counsel, the proceeding against the 1[st] petitioner is liable to be quashed. The learned Counsel would then contend that the only allegation against the 2[nd] petitioner is that he was the scribe. Inviting the attention of this Court to Annexure-D, it was submitted that a complaint was filed before the Deputy Inspector General of Registration Crl.M.C. No. 931 of 2014 5 (Licensing) by the complainant and the said officer had directed the District Registrar (General) to conduct a detailed enquiry. The report revealed that the scribe had not committed any intentional act and all that could be said was that he was careless. Instead of mentioning that the property covered under the Wakf Deed stood in the name of Kader Rawther, it was incorrectly mentioned that the property stood in the name of Auva Umma. It was concluded that the act of the scribe was unintentional and by his acts no loss had been sustained to the complainant. Referring to Annexure-E Patta issued in favour of Auva Umma, Annexure-F copy of Basic Tax Register and Annexure-G sketch, it was vehemently contended that the property sold to the complainant was entirely different from the 31.8 cents of property which was sold to the 3[rd] accused and that the said properties had come from different sources. It was also submitted that the Crl.M.C. No. 931 of 2014 6 complainant is still enjoying the 1.10 acres of property without interference from any quarters and that being the state of affairs, the continuance of proceedings against the petitioners is an abuse of process. It was further argued that the allegation raised by the 1[st] respondent was investigated threadbare and Annexure-B refer report was submitted by the Sub Inspector of Police, Mankara Police Station. The learned Counsel referred to Annexure-H correction deed and submitted that the clerical mistake that crept in while executing Annexure-C document was corrected by executing Annexure-H deed. Reliance was also placed on the decisions of the Apex Court in **All Cargo Movers India Private Limited and Others** V **Dhanesh Badarmal Jain and Another** [2007 (14) SCC 776], **Inder Mohan Goswamy andAnr** V **State of Uttaranchal and Others** [AIR 2008 SC 251] , to support his contentions. Crl.M.C. No. 931 of 2014 7 - 9.The learned Counsel appearing for the 1[st] respondent countered the submissions of the petitioners and submitted that the court below had taken cognizance of the offence after being prima facie satisfied that the allegations levelled against the petitioners clearly constituted the offences alleged. According to the learned counsel, if it were not for the active assistance of the petitioners herein, the accused Nos. 1 and 2 could not have perpetrated the illegal acts. It is further submitted that this Court will not be justified in looking into the materials produced by the petitioners at this stage, especially in a proceeding under Section 482 of the Code and prayed that the petition be dismissed. - 10.I have considered the rival submissions and have anxiously perused the complaint filed by the 1[st] respondent . - 11.The specific allegation in the complaint is that the Crl.M.C. No. 931 of 2014 8 accused Nos. 1 to 6 in pursuance to their common intention to cheat the complainant, executed document No.4718 of 2008 of the Parali Sub Registry by including the property belonging to the complainant purchased as per document No.1593 of 1983 of the Parali Sub Registry. The property covered in the 2008 deed is having an extent of 31.8 cents . Annexure-H Deed of correction executed in the year 2011 at the Parali SRO would leave no manner of doubt that the reference in the 2008 deed as Auva Umma being the owner of the 31.8 cents of property is incorrect. Annexure-H deed states that the 31.8 cents of property was possessed by Pareed Rawther, the husband of Auva Umma and the father of accused Nos. 1 and 2. 12.Annexure-D report was prepared by the District Registrar (General) and the same was submitted before the Deputy Inspector General (Licensing). The said report clears the petitioners of any wrong doing. The 1[st] respondent has no Crl.M.C. No. 931 of 2014 9 case that the conclusions arrived at by the District Registrar in the said report was subject to any challenge. The said report would reveal the true state of affairs. The said report reveals that the 31.8 cents of property transferred as per the Wakf Deed executed in the year 2008 was possessed by Kader Rawther, the father of accused Nos. 1 and 2. The Re-survey number of the property is 470/5 and its old Survey Number is 1A/1C and it was covered under Thandapper Number 351. The said report also reveals that the property having an extent of 1.10 acres and purchased by the 1[st] respondent in the year 1983 lies immediately on the northern side of the 31.8 cents covered under the Wakf Deed. The said 1.10 Acres falls under Re-survey No.470/4 (Old Survey No.1A/1B) and comes under Thandapper No.1217. In that view of the matter, I find merit in the submission of the learned counsel appearing for the petitioner that the Crl.M.C. No. 931 of 2014 10 allegations raised in the complaint will not make out the offence against the petitioners herein. The mere fact that the 1[st] petitioner had stood as an attestor and the 2[nd] petitioner was the scribe cannot be taken to mean that they had a role to play in the acts of the principal accused. After going through the materials on record, it does not appear that the recital in the deal dated 2008 that Auva Umma is in title and possession of the 31.8 cents of property can only be an oversight, which was corrected as per Annexure-H correction deed. - 13.I am of the view that the materials produced by the petitioners would rule out and displace the assertions contained in the charges levelled against them. The material relied upon by the petitioners would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. Banking on the principles laid down by the Apex Court in **Rajiv Thapar and Others** Crl.M.C. No. 931 of 2014 11 **v. Madan Lai Kapoor** [ 2013 (3) SCC 330], the judicial conscience of this Court persuades me to exercise its power under Section 482 of the Code of Criminal Procedure to quash the criminal proceedings, for that would prevent abuse of process of the Court, and secure the ends of justice. It is made clear that the case against the principal accused will stand on a different footing and the observations touching Annexure-D report, made in this order, is limited for determining the nature of allegations levelled against the petitioners herein. In the result, this petition is allowed. All further proceedings against the petitioners, who are the accused Nos. 5 and 6 in C.C.No.774 of 2011 on the file of the Judicial Magistrate of First Class-II, Palakkad are quashed. sd/- ## **JUDGE** SKS //TRUE COPY// P.A. TO JUDGE