Rekha John v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** ## **Crl.MC.No.4554 OF 2015** **CC 422/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PIRAVOM CRIME NO.796/2013 OF PIRAVOM POLICE STATION, ERNAKULAM** ## **PETITIONER/3RD ACCUSED:** **REKHA JOHN AGED 43 YEARS D/O. YOHANNAN, OOTHUKUZHIYIL HOUSE, PAMPAKKUDA P.O.,ONAKKOOR VILLAGE, PIN-686 667.** **BY ADVS. SRI.P.A.AUGUSTINE(AREEKATTEL) SRI.P.V.SANTHOSH JOSE** ## **RESPONDENTS/COMPLAINANT/DEFACTO COMPLAINANT:** **1 STATE OF KERALA (SUB INSPECTOR OF POLICE,PIRAVOM POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 BENNY ANTONY AGED 48 YEARS S/O. ANTONY, KARUVELIL HOUSE, ALUVA EAST P.O., ERUMATHALA, ERNAKULAM DISTRICT-683 101. R2 BY ADV. SRI.K.V.SOHAN BY ADV. SMT.SREEJA SOHAN.K.** **R1 SRI RAMESH CHAND PUBLIC PROSECUTOR** **THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON 05.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.4554/2015 2 ## **O R D E R** This petition is filed under Section 482 of Cr.P.C. 2. The petitioner herein is the 3[rd] accused in C.C.No.422 of 2015 on the file of the Judicial Magistrate of First Class Court, Piravom. She along with the rest of the accused, are being proceeded against for having committed offence punishable under Sections 420, 406, 465, 466, 468, 471 and 120B read with Section 34 of IPC. 3. The de facto complainant is the second respondent therein. In her complaint lodged before the Judicial First Class Magistrate Court, Muvattupuzha, she narrates her version in the following manner:- (a) The 1[st] accused Sri.K.C.Scaria is the owner in title and possession of property having an extent of 80 cents situated in S.No.687/6A in Piravom Village. He approached the 2[nd] respondent and offered to sell the property by falsely inducing him to believe that the property is free of all encumbrances. Believing his words, the 2[nd] respondent purchased the property on 04.12.2010. By virtue of two deeds viz., document Nos.2636 of 2010 and 2660 of 2010, the assignment deeds were registered. (b) While he was enjoying the property as aforesaid, he applied for and obtained an encumbrance certificate from the Piravom SRO on 30.5.2013. On a perusal of the said certificate, the 2[nd] respondent realized Crl.M.C.No.4554/2015 3 to his dismay, that prior to the execution of sale deeds in his favour on 4.12.2010, and thereafter, the 1[st] accused had executed and registered several documents in favour of third parties. (c) Insofar as the allegation relating to the petitioner herein is concerned, it is alleged that the 1[st] accused executed an assignment deed in favour of one Sri. Soni Abraham transferring rights of user of a pathway having a length of about 45 meters and a width of 10 feet on 12.08.2011 by suppressing the fact that the property through which the right of user was granted had already been assigned to the 2[nd] respondent. The petitioner in her capacity as the licensed scribe had carried out the documentation. It is alleged that the petitioner failed to exercise due diligence and she was arrayed as an accused. 4. Sri.P.A.Augustine, the learned counsel appearing for the petitioner, submitted that the petitioner is a lawyer by profession, who is also a licensed document writer. She was approached by the 1[st] accused to prepare a deed to transfer user of rights over a pathway. The 1[st] accused had produced the requisite records and all that the petitioner had done was prepare a sale deed bearing No.1739 of 2011 of the Sub Registry Office, Piravom which relates to the sale of the user right over a small strip of land. According to the learned counsel, the petitioner was arrayed as an accused for the reason that she failed to exercise due diligence at the time of preparation of the deed. It is a pure case of Crl.M.C.No.4554/2015 4 oversight which would not in any way attract the offences alleged, submits the learned counsel. 5. Alternatively, it was argued that the 1[st] accused had approached the Civil Court and had contended that the sale deeds executed in favour of the 2[nd] respondent is only a sham document and that it was executed as security for the loan transaction between the parties. He contended that the rights over the properties were retained by the 1[st] accused himself. On the date of execution of the sale deed in favour of the 2[nd] respondent, an agreement was entered into between the parties agreeing to re-convey the properties on payment of the loan amount so advanced to the 1[st] accused. Several cheques and blank papers were also handed over. The time period fixed in the agreement was 4.12.2012 and in spite of the readiness of the 1[st] accused, the property was not reconveyed. Aggrieved by the above, the 1[st] accused filed a Suit as O.S.No.203 of 2013 before the learned Munsiff and by Annexure-A6 judgment dated 25.6.2018, the learned Munsiff had declared that the sale deed Nos.2636 of 2010 and 2660 of 2010 executed on 4.12.2010 are nominal, sham and are not binding upon the 1[st] accused and the plaint schedule properties. The 2[nd] respondent was restrained by an order of injunction from trespassing into the plaint schedule properties or from alienating the same. In view of the judgment of the Civil Court, the rights over the property has been altered and hence the allegations in the Crl.M.C.No.4554/2015 5 Criminal Proceeding has no legs to stand, submits the learned counsel. 6. The learned Public Prosecutor, on instructions, submitted that when the assignment deed was prepared by the petitioner herein, she should have been diligent and she should have noticed that even prior to the execution of the said deed, the property had already been assigned. 7. The learned counsel appearing for the second respondent has also opposed the prayer. It is submitted that the properties were purchased by the petitioner for lawful consideration in 2010 itself and in that view of the matter, the assignment of right of user is without any authority. It is urged that the petitioner herein had actively aided the 1[st] accused and since the allegations make out the ingredients of the offence, the invocation of powers under Section 482 of the Cr.P.C will not be justified. She would further urge that against the orders of the Civil Court, the 2[nd] respondent has preferred an appeal which is pending. 8. I have considered the submissions advanced and have perused the entire records. 9. Admittedly, the 1[st] accused was the owner in title and possession of an item of property having an extent of 80 cents which was assigned by him to the 2[nd] respondent by two assignment deeds. The case of the prosecution is that suppressing the said fact, the 1[st] accused had transferred user rights of a small strip of land to CW3, Sri. Sony Abraham, and received consideration. The specific allegation against the Crl.M.C.No.4554/2015 6 petitioner herein is that she was the licensed document writer and scribe and that she had prepared the document without conducting an inquiry with regard to the title of the property. In the final report, the purchaser has been cited as CW3. From his statement, it is obvious that his interaction was with the 1[st] accused and he had no occasion to request the petitioner to enquire into the title of the 1[st] accused. When the person who wanted the document to be executed approaches the document writer and produces documents and does not require an inquiry into the title, it would be far-fetched to expect the document writer to conduct a roving enquiry and to obtain records prior to drafting the document. Situation would have been different if the prosecution had a case that CW3 had inquired with the petitioner and she gave false information that the title of the assignor was clear and that there are no encumbrances. In that view of the matter, there is no question of the offence under Section 420 and 406 being attracted against the petitioner. The prosecution has no case that the petitioner had forged any document or that she had used any document as genuine with intent to cheat. All that she had done is prepare an assignment deed at the instance of the 1[st] accused on the strength of the available documents which were handed over. In that view of the matter, the offenses under Sections 465, 466, 468 and 471 also will not be attracted. 10. There is yet another matter. Admittedly, on the date of Crl.M.C.No.4554/2015 7 execution of the sale deed by the 1[st] accused in favour of the 2[nd] respondent, a contemporaneous agreement was executed agreeing to reconvey the property on payment of the amount borrowed. This fact is admitted by the 2[nd] respondent as is evident from Annexure-6 judgment of the Civil Court. After detailed evaluation of the evidence let in, the Civil Court has declared that the sale deeds executed by the 1[st] accused are nominal and sham and not binding upon him. The agreement between the parties were executed on 4.12.2010 and period fixed in the agreement was 4.12.2012. The 1[st] accused had assigned several items of property prior to 4.12.2010 and thereafter. The assignment deed transferring user of the rights was on 12.8.2011. If that be the same, the conviction of the 1[st] accused that he would be able to repay the amount borrowed and get back the property reconveyed prior to 4.12.2012 might have persuaded him to assign the right of user on 12.8.2011. 11. It is settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is Crl.M.C.No.4554/2015 8 bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue. If the above considerations are satisfied, the Court may take into consideration the special facts of a case and quash the proceeding even though it may be at a preliminary stage. 12. In the case on hand, there is every reason to conclude that the institution of the criminal proceeding is manifestly attended with mala fide insofar as it concerns the petitioner. A proceeding before a criminal court ought not to be permitted to degenerate into a weapon of harassment or persecution. (see State of Karnataka v. Muniswami, [1977 CriLJ 1125]). 13. For the above reasons and in the light of the materials discussed above, I am of the considered view that the continuance of criminal proceedings against the petitioner herein would result in abuse of process. This is a fit case warranting invocation of the extraordinary inherent powers of this Court to quash the proceedings. This petition will stand allowed and all proceedings as against the petitioner, who is the third accused in C.C.No.422 of 2015 pending before the Judicial First Class Magistrate Court, Piravom, will stand quashed. **Sd/-** ## **RAJA VIJAYARAGHAVAN V JUDGE** csl Crl.M.C.No.4554/2015 9 ## APPENDIX ## APPLICANT'S EXHIBITS: ANNEXURE A1 CERTIFIED COPY OF FIR IN CRIME NO.796/2013 OF PIRAVOM POLICE STATION. ANNEXURE A2 CERTIFIED COPY OF FINAL REPORT IN CRIME NO.796/2013 OF PIRAVOM POLICE STATION. ANNEXURE A3 COPY OF AGREEMENT DTD.4.12.2010 ENTERED INTO BETWEEN THE 1ST ACCUSED AND THE DE-FACTO COMPLAINANT. ANNEXURE A4 COPY OF INJUNCTION ORDER PASSED IN IA NO.1253/13 IN OS NO.203/13 OF MUNSIFF'S COURT, MUVATTUPUZHA. ANNEXURE A5 COPY OF MEDICAL REPORT OF THE APPLICANT ISSUED FROM PVS MEMORIAL HOSPITAL, KOCHI. ANNEXURE A6 CERTIFIED COPY OF JUDGMENT PASSED IN O.S.NO.203/13 OF MUNSIFF'S COURT, MUVATTUPUZHA.