Sebastian v. Sonu Sebastian and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935** ## **Crl.MC.No. 3085 of 2012** **--------------------------CMP NO. 6234/2011 IN CC NO.76/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA DATED 04-07-2012** **........** **PETITIONER(S)/ACCUSED:** **------------------------------------------** **SEBASTIAN, S/O.JOHN, VALAYANICKAL HOUSE, MILAKOMBU KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK.** **BY ADVS.SRI.T.G.RAJENDRAN SRI.UNNIKRISHNAN.V.ALAPATT** **RESPONDENT(S)/COMPLAINANT/STATE:** **------------------------------------------------------------------** **1. SONU SEBASTIAN, W/O.JAYAN, KUTTICHKKU HOUSE, CHALAKKUDY DESOM, CHALAKKUDY VILLAGE, MUKUNDAPURAM TALUK-691 585.** **2. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682 031.** **R1 BY ADV. SRI.P.SANTHOSH (PODUVAL) R2 BY PUBLIC PROSECUTOR SRI.JITHESH.R.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.3085/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE I- TRUE COPY OF THE ORDER OF THE MAGISTRATE DATED 4.7.2012.** **ANNEXURE II- COPY OF THE COMPLAINT.** **ANNEXURE III- TRUE COPY OF THE DOCUMENT NO.2634/2010, OF THODUPUZHA SUB REGISTRY.** **ANNEXURE IV- TRUE COPY OF THE DOCUMENT NO. 2771/2010, OF THODUPUZHA SUB REGISTRY.** **ANNEXURE V- COPY OF THE PLAINT IN O.S.3/2011.** **ANNEXURE VI- COPY OF THE REGISTERED POWER OF ATTORNEY DEED.** **RESPONDENTS' ANNEXURES:** **N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## P.D.RAJAN, J. .................................... Crl.M.C.No.3085 of 2012 ............................................... Dated this the day 4[th] of March, 2014 ## O R D E R This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure-I order and Annexure-II complaint in C.C.No.76 of 2012 on the file of the Chief Judicial Magistrate Court, Thodupuzha. The petitioner is the sole accused in the above case and the first petitioner had filed a complaint before the learned magistrate alleging offences under Sections 417, 420, 423 r/w 34 of the Indian Penal Code against her father and two others. He challenges the petition on two grounds; the prima facie case is not made out against him and if trial is continued it is an abuse of process of court. - 2.The allegation against the first respondent, is that she executed a power of attorney in favour of her father, using that power of attorney he transferred few properties owned by her as per document Nos.2634 Crl.M.C.No.3085 of 2012 2 and 2771 of 2010 of SRO, Thodupuzha in favour of 2[nd] and 3[rd] accused. In the circumstance, she filed a complaint before the Chief Judicial Magistrate Court, Thodupuzha, that a fraudulent transfer was effected without her consent on the basis of her power of attorney. For that she has filed O.S.No.3 of 2011 before the Sub Court, Thodupuzha for declaring the document as null and void. After considering the averment in Annexure-II, the learned Magistrate was of the opinion that prima facie case is made out against the petitioner and cognizance was taken. In the circumstance, the petitioner approached this Court to quash Annexure-II & III invoking inherent jurisdiction. 3.The learned counsel for the petitioner contended that, Annexure-II is filed before the Chief Judicial Magistrate Court, Thodupuzha only to harass the petitioner. The transaction between the petitioner and the first respondent is purely civil in nature and no materials were produced to show that offence under Section 420 Crl.M.C.No.3085 of 2012 3 of IPC was committed by him. The first respondent was present at the time of registration of the document before the Sub Registrar and no objection was raised at that time. Moreover, cognizance was taken without complying with the statutory provision in the Code. - 4.The learned counsel appearing for the first respondent and the Public Prosecutor strongly opposed the above argument and contended that prima facie case is made out against the petitioner. The lower court considered the ingredients of the offences committed by the petitioner and opined that prima facie case is made out against him for the offence under Sections 417, 420 and 423 of IPC. - 5.Now the short question that arises for consideration is whether prima facie case is made out against the petitioner? If so, this is a fit case for invoking inherent jurisdiction. In order to attract Section 415 of IPC, the de facto complainant has to prove that whoever, by Crl.M.C.No.3085 of 2012 4 deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. The explanation says that a dishonest concealment of facts is a deception within the meaning of this section. The learned Magistrate in Annnexure-I opined that prima facie case is made out against petitioner for the offences under Sections 417, 420 and 423 of IPC. Therefore, cognizance was taken against the petitioner and issued summons. No offence is made out against 2[nd] & 3[rd] accused. Therefore, complaint against them was dismissed under Section 203 of Cr.P.C., if that be the position, I am of the opinion that it is a matter of evidence. Inherent jurisdiction under Section 482 of Cr.P.C., can be invoked for the three Crl.M.C.No.3085 of 2012 5 grounds mentioned therein for making such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 6.The learned counsel for the petitioner contended that it is only a pure civil transaction and criminal case is not warranted to the facts and circumstances of the case. But considering the averments, the transaction is between the father and the father's relatives prima facie which shows that there is a case against the father. Therefore, in the interlocutory stage if any observation is made, it will affect the prosecution or the complainant's case. The inherent jurisdiction can be exercised sparingly, carefully and the caution only when such exercise is justified by the test specifically laid down in Madhu Limaye v. The State of Maharashtra [(1997) 4 SCC 551]. The facts and circumstances of the case show that this is not a fit case to invoke inherent jurisdiction under Section 482 of Cr.P.C. 6 Crl.M.C.No.3085 of 2012 There is no merit in this petition and this Crl.M.C., is dismissed accordingly. The petitioner is at liberty to take all the contentions in support of his defence in the trial court. sd/(P.D.RAJAN, JUDGE) AMV/5/3/