## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE SUNIL THOMAS**
**FRIDAY, THE 9TH DAY OF MARCH 2018 / 18TH PHALGUNA, 1939**
**Crl.MC.No. 4269 of 2017**
## **PENDING AS CC 46/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALI**
**CRIME NO. 384/2015 OF VELLATHOOVAL POLICE STATION , IDUKKI**
## **PETITIONER(S)/ACCUSED**
**SHAJI AUGUSTINE AGED 49 YEARS, S/O AUGUSTINE, MANNUR HOUSE, DESEEYAMBHAGOM, POTTANKAD KARA, BYSAN VALLEY VILLAGE, IDUKKI DISTRICT. PIN-682007.**
## **BY ADV.SRI.IEANS.C.CHAMAKKALA**
## **RESPONDENT(S):**
**1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031.**
## **2. MANJU,**
**AGED 37 YEARS, W/O SIJI, CHIRAPPURATHU HOUSE, KUNJITHANNI KARA, KUNJITHANNI VILLAGE, IDUKKI DISTRICT.**
**R2 BY ADV. SRI.K.RAMAKUMAR (SR.) R2 BY ADV. SRI.T.RAMPRASAD UNNI R2 BY ADV. SRI.S.M.PRASANTH R2 BY ADV. SRI.G.RENJITH R2 BY ADV. SMT.ASHA BABU R2 BY ADV. SMT.R.S.ASWINI SANKAR R1 BY SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**Crl.MC.No. 4269 of 2017 ()**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS**
**ANNEXURE A1 CERTIFIED COPY OF THE COMPLIANT ANNEXURE A2 CERTIFIED COPY OF THE F.I.R. ANNEXURE A3 CERTIFIED COPY OF THE CHARGE SHEET. ANNEXURE A4 PHOTOCOPY OF THE AGREEMENT DATED 12.03.2014. ANNEXURE A5 PHOTOCOPY OF THE LAWYER NOTICE ISSUED ON BEHALF OF THE 2ND RESPONDENT DATED 23.01.2017. ANNEXURE A6 PHOTOCOPY OF THE REPLY LAWYER NOTICE ISSUED ON BEHALF OF THE PETITIONER DATED 14.02.2017. ANNEXURE A7 PHOTOCOPY OF THE SETTLEMENT DEED DATED 21.04.2014.**
## **RESPONDENT(S) EXHIBITS**
**NIL**
R.AV
//TRUE COPY// PA TO JUDGE
## **SUNIL THOMAS, J.**
## =================
## **Crl.M.C.No.4269 of 2017**
================= Dated this the 9[th] day of March, 2018
## **ORDER**
Petitioner is the sole accused in C.C.No.46 of 2016 of the Judicial First Class Magistrate Court, Adimaly for offences punishable under sections 406 and 420 of the Indian Penal Code.
2. The above crime was registered on the basis of a private complaint, a copy of which is produced as Annexure-A1 dated 17.08.2015, filed by the second respondent herein, defacto complainant. She claimed that the accused and the husband of the defacto complainant were running a joint business. In 2013, the accused requested the defacto complainant and her husband to share the amount for taking on lease, a resort by name 'Munnar Black Forest' on profit sharing basis. It was stated that, if they are able to invest Rs.25,00,000/-, they would get huge profits. Believing the representation, amounts were given by the defacto complainant on few occasions till February 2014, totalling to Rs.12,53,000/-. Thereafter, accused represented that the business was not profitable, and that he was withdrawing from the project. He undertook to return the money by November 2014. An agreement was executed and handed over. Thereafter, to defeat the claims of
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the defacto complainant, the accused allegedly settled his unencumbered property in favour of his wife. She sold it to third party for profit. According to the defacto complainant, against the representation, accused continued to run the business and made huge profits. Contending that the accused had committed offences punishable under sections 406 and 420 of the Indian Penal Code, private complaint was laid. It was referred to the police under section 156(3) Cr.P.C and Annexure-A3 FIR was registered. After investigation, Annexure-A2 final report dated 17.11.2015 was laid for offences punishable under sections 406 and 420 of the Indian Penal Code.
3. Contending that the entire allegations are false and that, the whole facts were not disclosed by the defacto complainant and that, even the admitted facts only disclosed a dispute of civil nature, accused has preferred this Crl.M.C. It was contended that the defacto complainant relied on Annexure-A4 agreement dated 12.03.2014, a copy of which was produced along with the Crl.M.C. It was contended that, he had agreed to pay a sum of Rs.12,53,000/by November 2014. It was contended that, he thereafter paid a sum of Rs.3,28,000/- by cheque, a copy of which was produced as Annexure-A4(3). Annexure-A4(2) was a letter of the SBI dated
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24.10.2014 stating that the cheque was honoured in favour of the defacto complainant. It was stated that, after the execution of the agreement dated 12.03.2014, all the business transactions between the parties were checked and the total amount due was fixed at Rs.3,28,000/- evidenced by Annexure-A7 agreement dated 21.04.2014. The cheque was given in full and final settlement and it was contended that the defacto complainant cannot claim any further right. It was contended that the second respondent had caused Annexure-A5 lawyer notice to be issued, alleging that the parties had entered into an agreement relating to running of another resort and a sum of Rs.12,53,000/- was received by the accused. It was alleged that the amount was not given. This was replied by Annexure-A6. The police, in the course of investigation, did not unearth any material to prove that the entire Rs.25,00,000/was received by the accused. Hence, it was contended that, unless the full amount was paid, no criminal liability can be fastened on the petitioner herein. It was further contended that a criminal liability can be fastened on him, only if it is established that the accused had not given the partnership or the share as agreed upon. It was further contended that, no material was collected to show that the petitioner herein was running the resort as alleged by the defacto
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complainant. Hence, it was contended that the finding of the police is not sustainable and is liable to be quashed on the ground that, even the admitted facts disclosed only a civil dispute.
4. A counter affidavit was filed by the defacto complainant in answer to the various allegations raised in the Crl.M.C. It was vaguely contended that the agreement was not executed by the parties. It was alleged that the accused had previously purchased stamp papers to set up a false case. It was further contended that, his intention was to cheat the defacto complainant and he had forged the signature of the defacto complainant.
5. A perusal of the records show that, there is a specific allegation that the accused had received a sum of Rs.12,53,000/- for running “Munnar Black Forest” resort. Ext.A4 document, relied on by the accused himself referred to the receipt of Rs.12,53,000/-. Accused had undertaken to repay it by Annexure-A4 document. This tallies with the claim of the defacto complainant to that extent. However, accused has set up a defence that a subsequent agreement was entered into to limit the claim to Rs.3,28,000/- and there are some materials to show that cheque for the above sum was issued and was collected. Prima facie, this is discernible from Annexures-A3, A4, A4/2, A4/3. In the complaint, it is specifically
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pleaded that, transaction was in relation to running of a resort by name 'Munnar Black Forest', Kallar. On the other hand, in the subsequent lawyer notice issued by the defacto complainant, after the registration of the present crime, there is an averment that the amount was received for the purpose of running another resort by name Chithira Woods Manor, Pallivassal village. Evidently, the contentions of the defacto complainant do not tally with each other. However, defacto complainant has a vague contention that the agreement produced by the accused was a forged one.
6. On the other hand, in Annexure-A6, though the accused denied the receipt of Rs.12,53,000/- and the execution of the document dated 12.03.2014, in the latter paragraph, he had admitted the execution of one agreement and payment of Rs.3,80,000/-. There is no reference in that reply notice regarding the second agreement entered into between the parties as Annexure-A7. It is further seen that, Annexure-A4 agreement is dated 12.03.2014, whereas Annexure-A7 is dated 21.04.2017. However, the stamp paper for both the documents are seen purchased by the accused on the same day namely 10.03.2014. Relying on this, learned senior counsel for the defacto complainant contended that, this shows the falsity of the agreement since even
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on the date of execution of Annexure-A4 document, accused had apprehended the use of another stamp paper and has purchased yet another stamp paper for Rs.100/- on 10.03.2014.
7. Learned counsel for the revision petitioner relied on the decision of the Honourable Supreme Court in **Paramjeet Batra v. State of Uttarakhand and Ors. (2012 KHC 4763)** to contend that, if a dispute in civil nature is given the cloak of criminal nature and if a civil suit is pending, High Court should not hesitate to quash criminal proceedings, to prevent abuse of the process of law. This was followed by this Court in **Sanjeev Kumar K.P. v. Puthanpurayil Abdul Salam and Another (2014 KHC 431)** .
8. Even though the legal position is settled, it appears that, both sides have set up some inconsistent claims and defences. It seems that, these aspects can be clarified only through evidence. Evidently, both sides shall set up fluctuating contentions, though, it is clear that the parties had monetary transaction. But, whether it will affect the substratum of the case is a matter that can be decided in a trial only. Having considered this, I feel that, it is too early at this stage to conclude that the criminal case is absolutely groundless and is liable to be quashed at the threshold. Accordingly, the matter is to be considered in detail. Hence,
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Crl.M.C fails and is dismissed leaving it open to the right of the parties to raise all their contentions before the court below.
Crl.M.C is dismissed as above.
Sd/-
**SUNIL THOMAS Judge**
Sbna/
/true copy/ PS to Judge.
