Rasheed Basheer and Sajitha Rasheed v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** ## **Crl.MC.No. 3784 of 2018** ## **C.C.NO.68/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM** ## **CRIME NO.93/2013 OF KAYAMKULAM POLICE STATION, ALAPPUZHA** ## **PETITIONERS/ACCUSED:** **1 RASHEED BASHEER, S/O.BASHEER, KANDATHIL KARA HOUSE, KANJAR, IDUKKI-685590. 2 SAJITHA RASHEED, W/O.RASHEED, KANDATHIL KARA HOUSE, KANJAR, IDUKKI-685590.** **BY ADVS. SRI.SADCHITH.P.KURUP SRI.C.P.ANIL RAJ** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 THE SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION, KAYAMKULAM-690502. 3 MUHAMMED HANEEFA, KALLELIL HOUSE, CHERAVALLY MURI, CHERAVALLY P.O., KAYAMKULAM-690502. R1 & R2 BY PUBLIC PROSECUTOR SRI. E.C.BINEESH R3 BY ADV. SRI.SERGI JOSEPH THOMAS** ## **OTHER PRESENT:** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 8.3.2019, THE COURT ON 15.03.2019 PASSED THE FOLLOWING:** **Crl.MC.No. 3784 of 2018 : 2 :** ## **T.V.ANILKUMAR, J.** ## **--------------------------------Crl.M.C.No.3784 of 2018 ---------------------------------Dated this the 15[th] day of March, 2019** ## **O R D E R** The petitioners who seek to quash Annexure A11 final report submitted by the Sub Inspector of Police, Kayamkulam for offence punishable under Section 420 read with Section 34 IPC and consequential proceedings in C.C.No.68/2016 on the files of the Judicial First Class Magistrate Court, Kayamkulam, are the accused. They are husband and wife also. 2. They seek to quash the proceedings on the ground that allegations against them do not make out an offence punishable under Section 420 read with Section 34 IPC and further the transaction between the 3[rd] respondent, defacto complainant and the petitioners is only of civil nature. 3. The 1[st] accused husband is an owner of 8.52 Ares of land in Kayamkulam village obtained by him under Annexure A1 Sale Deed No.2194/2010 dated 17.7.2010. The allegation ## **Crl.MC.No. 3784 of 2018 : 3 :** against the petitioners is that they approached the defacto complainant, the 3[rd] respondent and induced them to purchase the aforesaid land for a consideration of `45 lakhs and consequently following an agreement executed between 1[st] petitioner and the 3[rd] respondent, on 20.7.2010, the petitioners promised to execute a sale deed in favour of the 3[rd] respondent within a period of 3 years from the date of agreement for sale. On 20.7.2010 itself, an advance amount of `5,12,000/- was also paid to the 1[st] petitioner. 4. As per the prosecution case, there was a mortgage created by the 1[st] petitioner in favour of the IDBI Bank even prior to the execution of agreement for sale dated 20.7.2010 and this material fact was willfully suppressed from the notice of the defacto complainant. Eventhough the term of 3 years agreed for completing the sale expired, the petitioners did not either execute the sale deed or return the advance amount. It is a fact that IDBI Bank proceeded against the 1[st] petitioner invoking the provisions of Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and when the property was about to be ## **Crl.MC.No. 3784 of 2018 : 4 :** brought to sale, the matter came before the Debt Recovery Tribunal and the proceedings are now pending consideration before it. The allegation against the petitioners, therefore, is that they had an intention to cheat the 3[rd] respondent defacto complainant by suppressing the existence of mortgage in favour of IDBI Bank and thereby induced the defacto complainant to part with advance amount with a view to making wrongful gain out of the money received from the de facto complainant. 5. The contention of the petitioners on the other hand is that the subsistence of mortgage in the name of IDBI Bank was in the know of the 3[rd] respondent and there was no suppression of any material fact at all. Admitting execution of sale agreement dated 20.7.2010, petitioners continue to contend that the document was never intended to operate as agreement for sale but only as security for the loan received from the 3[rd] respondent. In short, the contention of the petitioners is that on the date of agreement for sale, they had no intention to deceive or cheat the 3[rd] respondent and in any view of the matter, the alleged subsequent breach of promise ## **Crl.MC.No. 3784 of 2018 : 5 :** by itself will not give rise to criminal liability under Section 420 read with Section 34 IPC. 6. Petitioners do not deny that there was encumbrance created in favour of IDBI Bank even prior to execution of agreement for sale dated 20.7.2010. Their case is that 8.52 Ares of land in Kayamkulam Village were, in fact, owned by the 2[nd] petitioner, the prior vendor under Annexure A1 Sale Deed dated 17.7.2010. On the basis of a previous agreement for sale executed in favour of the 3[rd] respondent by the 2[nd] petitioner as on 6.7.2010, the IDBI Bank granted a loan for `84 lakhs and it was after payment of the aforesaid amount, the sale deed dated 17.7.2010 was executed in favour of the 1[st] petitioner. But the contention of the 3[rd] respondent is that this transaction of loan with IDBI Bank was not known to him at all. His suit, O.S.No.30/2016 for specific performance of agreement for sale dated 17.7.2010 filed before Sub Court, Mavelikkara is said to have been dismissed for non payment of balance court fee and he has ceased to pursue any civil remedy thereafter. 7. The question before me in this proceeding under ## **Crl.MC.No. 3784 of 2018 : 6 :** Section 482 of the Cr.P.C. is whether the allegations disclosed by the final report make out an offence of cheating under Section 420 read with Section 34 IPC. I was told that a charge was already framed by Judicial First Class Magistrate Court, Kayamkulam for offence punishable under Section 420 read with Section 34 IPC and the currently C.C.No. 68/2016 is at the stage of trial. On examining the entire allegations emerging from the final report, I am fully satisfied that the offence under Section 420 IPC has been clearly made out. 8. The question as to whether the 3[rd] respondent was aware of the existence of mortgage created in the name of IDBI Bank even prior to execution of agreement for sale dated 17.7.2010 is a disputed matter which could be decided only on the basis of evidence collected in the course of the trial of C.C.No.68/2016. When facts are in dispute and the veracity or reliability of prosecution case could be tested only on evidence, the exceptional power of this court vested under Section 482 Cr.P.C to quash a final report and consequential criminal proceeding pending before the trial court cannot be exercised at all. The prosecution has to prove, in order to establish an ## **Crl.MC.No. 3784 of 2018 : 7 :** offence under Section 420 read with Section 34 IPC against the petitioners, that the agreement for sale between parties was brought into existence at a time when there was encumbrance in favour of IDBI Bank and the same was willfully suppressed by the petitioners with a view to causing wrongful loss to the 3[rd] respondent. 9. On appreciating the entire materials before me, I am of the opinion that this is not a fit case where Annexure A11 final report and the consequential proceedings in C.C.No.68/2016 on the files of Judicial First Class Magistrate Court, Kayamkulam could be set aside at this stage accepting the plea of the petitioners that what is involved is only a dispute of civil nature between the defacto complainant and the accused. It is ordinarily true that when the transaction turns out to be purely civil and the accused have incurred only a civil liability under the disputed transaction, no criminal case could be initiated nor the person who committed breach of promise could be prosecuted for an offence of cheating. The legal position canvassed before me in **Sijo John and Others v. State of Kerala and Others [2018 (4) KHC 789]** laying down ## **Crl.MC.No. 3784 of 2018 : 8 :** the aforesaid legal principle of law, therefore, does not apply to the facts of this case. There are enough materials at present available to connect the 1[st] petitioner with the offence of cheating and therefore, it is not just and proper to quash the proceedings pending against him in C.C.No.68/2016. 10. But at the same time, I am of the view that the 2[nd] petitioner/wife of the 1[st] petitioner cannot be roped in the criminal proceeding fastening criminal liability on her, in as much as there is nothing to disclose or hold that she has committed any act of cheating and is hence liable to be tried for offence punishable under Section 420 read with Section 34 IPC. She is not a party to the sale agreement dated 20.7.2010. She has not received any advance amount nor has she agreed to convey a property which did not belong to her. She has no legal obligation to proceed to execute any sale deed pursuant to the sale agreement dated 20.7.2010. Even civil liability also was not sought to be fastened on her as she was not made a party in O.S.No.30/2016 seeking a decree for specific performance against her. The only allegation against her is that she caused the 3[rd] respondent to believe that the property ## **Crl.MC.No. 3784 of 2018 : 9 :** proposed for sale was not subject to any encumbrance and sale deed would be executed within the stipulated period of 3 years as agreed between parties. So long as she is not the owner of the property and further she has not signed the agreement for sale, she cannot be assumed to have induced the 3[rd] respondent to part with any advance amount to her. In so far as there is no agreement for sale of the property between the 2[nd] petitioner and the 3[rd ] respondent, no criminal liability could be fastened on her nor could she be prosecuted for offence punishable Section 420 read with Section Section 34 IPC. Thus, the charge framed by the court below to the extent it fastened criminal liability on 2[nd] petitioner, cannot have any support under law. The final report and consequential criminal proceeding in so far as it concerned the 2[nd] petitioner are illegal and liable to be set aside. The proceedings initiated against the 2[nd] petitioner is an abuse of process of law and in order to secure ends of justice, Annexure A11 final report requires to be quashed to the limited extent made clear above. In the result, Crl.M.C.No.3784/2018 is allowed in part quashing the Annexure A11 final report submitted before **Crl.MC.No. 3784 of 2018 : 10 :** Judicial First Class Magistrate Court, Kayamkulam and consequential criminal proceeding in C.C.No.68/2016 as against the 2[nd] petitioner, who is the 2[nd] accused in the above calender case. The plea for quashing the final report and proceedings as against the 1[st] petitioner/1[st] accused is dismissed. The final report and proceedings in the name of 1[st] petitioner who is the 1[st] accused in C.C.No.68/2016 will continue and there will be a direction to the Judicial First Class Magistrate Court Kayamkulam to proceed with trial of C.C.No.68/2016 as against the 1[st] petitioner/1[st] accused and dispose of the same as expeditiously as possible, at any rate within a period of three months from today. Crl.M.C.is disposed of accordingly. Sd/- **T.V.ANILKUMAR, JUDGE** Bb **Crl.MC.No. 3784 of 2018 : 11 :** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A1 COPY OF SALE DEED NO.2194/2010 IN THE NAME OF FIRST PETITIONER.** - **ANNEXURE A2 COPY OF AGREEMENT FOR SALE DATED 20-72010 EXECUTED BETWEEN FIRST PETITIONER & 2ND PETITIONER.** - **ANNEXURE A3 COPY OF LAND TAX RECEIPT DATED 17-12013.** - **ANNEXURE A4 COPY OF CERTIFICATE DATED 17-1-2013 ISSUED FROM KAYAMKULAM MUNICIPALITY.** - **ANNEXURE A5 COPY OF BUILDING TAX RECEIPT DATED 17-1-2013.** - **ANNEXURE A6 CERTIFIED COPY OF CMP NO.100/2013 FILED BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM.** - **ANNEXURE A7 CERTIFIED COPY OF FIR DATED 15-1-2013.** - **ANNEXURE A8 COPY OF ORDER DATED 12-2-2013 PASSED IN I.A.NO.504/13 IN SA 113/2013.** - **ANNEXURE A9 COPY OF COUNTER AFFIDAVIT FILED BY IDBI BANK IN I.A.NO.504/13 IN SA NO.113/2013.** - **ANNEXURE A10 COPY OF WRITTEN STATEMENT FILED BY PETITIONER IN SA 113/2013.** - **ANNEXURE A11 CERTIFIED COPY OF FINAL REPORT FILED BEFORE JUDICIAL FIRST CLASS MAGISTRATE, KAYAMKULAM.** - **ANNEXURE A12 COPY OF PLAINT FILED BY THIRD RESPONDENT BEFORE SUB COURT, MAVELIKKARA AS O.S.NO.30/2016.** - **RESPONDENTS' EXHIBITS:** NIL **//True Copy//** **P.A. To Judge** **Bb**