Sindhu Parameswaran and Gireesh v. State of Kerala and K.S. Joshy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938** **Crl.MC.No. 3273 of 2016 () ---------------------------** **CRIME NO.356/2016 OF ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM.** **........** **PETITIONER(S)/ACCUSED: ---------------------** **1. SINDHU PARAMESWARAN, D/O.PARAMESWARAN, MALIKAKKAL CHIRAYIL, KAILASAM, KARAKALAM WARD, ARYAD SOUTH VILLAGE, ALAPPUZHA.** **2. GIREESH, S/O.PURUSHOTHAMAN, KIZHAKKE VELIYIL HOUSE, KOMALAPURAM VILLAGE, S.ARYAD MURI, AVALOOKKUNNU PO-688 006.** **BY ADVS.SRI.S.SANAL KUMAR SRI.M.T.SURESHKUMAR SMT.T.J.SEEMA SMT.BHAVANA VELAYUDHAN** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **----------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. K.S.JOSHY, AGED 63 YEARS, S/O.LATE SANKUNNI,2C, LOTUS APARTMENT, D.H.ROAD, ERNAKULAM, KOHI-682016, PROPRIETOR OF M/S.GUIDELINES, 2ND FLOOR, XAVIER TOWER, ALAPPATT CROSS ROAD, RAVIPURAM, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SMT.MAYA R2 BY ADV. SRI.K.V.SABU** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** **Crl.MC.No. 3273 of 2016 () --------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** ## **------------------------** **ANNEXURE A1 : TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.356/2016 OF ERNAKULAM TOWN SOUTH POLICE STATION DATED 25-3-2016. ANNEXURE A2 : TRUE COPY OF THE CMP NO.508/2016 FILED BY THE 2ND RESPONDENT BEFORE THE ACJM (EO) COURT, ERNAKULAM DATED 21-3-2016. ANNEXURE A3 : TRUE COPY OF THE AGREEMENT FOR SALE DATED 28-2-2015 BETWEEN THE 1ST PETITIONER AND 2ND RESPONDENT. ANNEXURE A4 : TRUE COPY OF THE OS NO.691/2016 FILED BY THE 2ND RESPONDENT BEFORE THE MUNSIFF COURT, ALAPPUZHA DATED 28-7-2015. ANNEXURE A5 : TRUE COPY OF THE INJUNCTION ORDER IN IA NO.2905/2015 IN OS NO.691/2016 OF THE MUNSIFF COURT, ALAPPUZHA DATED 1-8-2015. ANNEXURE A6 : TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.691/2015 FILED BY THE 1ST PETITIONER BEFORE THE MUNSIFF COURT, ALAPPUZHA DATED 17-1-2016.** ## **RESPONDENT(S)' ANNEXURES:** **------------------------** **ANNEXURE R2(1): A COPY OF THE LETTER DATED 269.15. ANNEXURE R2(2): A COPY OF THE APPLICATION DATED 1.9.15 FILED BY THE 2ND RESPONDENT.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **B. KEMAL PASHA, J.** ................................................................ CRL.M.C. No. 3273 of 2016 ............................................................... Dated this the 19[th] day of July, 2016 ## **O R D E R** Petitioners are the accused in Crime No.356/16 of the Ernakulam Town South Police Station, registered for the offence punishable under Section 420 read with Section 34 of the Indian Penal Code. The allegation against the petitioners is that they, with intend to make unlawful gains by cheating and defrauding the defacto complainant, offered him to sell 8.05 Ares of property belonging to the first petitioner for a consideration at the rate of ₹5,50,000/- per cent and by falsely representing that the licence in favour of the first petitioner for running the resort in the property would be renewed, entered into a contract of sale on 28.02.2015 with the defacto complainant and obtained an CRL.M.C.No. 3273 of 2016 -: 2 :- amount of ₹25 lakhs as advance, and also caused the defacto complainant to carry out maintenance works for ₹ 9,50,000/- to the buildings in the property, thereby causing wrongful loss of ₹34,50,000/- to the defacto complainant. 2. According to the petitioners, the transaction is purely one of civil in nature and the agreement is essentially one for sale of immovable property with a building thereon and nothing more. According to the petitioners, a civil matter is presently transformed into a criminal case by giving a false cloak to the civil transaction. According to the petitioners, the defacto complainant had backed out from the agreement and has not cared to purchase the property, even though the first petitioner was present at the station for executing the sale deed as agreed. 3. According to the learned counsel for the petitioners, the present attempt of the defacto complainant through the Crime registered against the petitioners is nothing but an attempt to have a short cut to get the matter CRL.M.C.No. 3273 of 2016 -: 3 :- settled forcibly and to get back the advance amount as well as the amount allegedly invested by the defacto complainant towards maintenance works in the property. 4. _Per contra_ , the learned counsel for the 2[nd] respondent has pointed out that Annexure-A3 agreement specifically includes a clause that the petitioner shall settle all the liability, if any, for the property and shall carry out survey of the property by measuring the actual extent, and also would renew all licences required for running the resort that was being conducted by the first petitioner in the building in the property. According to the learned counsel for the 2[nd] respondent, there was such an unconditional undertaking by the first petitioner. It is alleged that there was a false representation from the part of the first petitioner that she had necessary licence for running the resort in the building in the property and such a resort was being conducted by her. Even at the time when Annexure-A3 agreement was entered into, she had represented that she CRL.M.C.No. 3273 of 2016 -: 4 :- would get all those licences required for the conduct of the resort, renewed. Further, according to the learned counsel for the 2[nd] respondent, in fact, she had no licence at all for running the resort in the building in the property at the time when Annexure-A3 agreement was entered into and therefore, the said false representation was deliberately made by the first petitioner for snatching away the amount of ₹25 lakhs, which she wanted for settling the financial liability in respect of the property. Through the said false and fraudulent representation, the 2[nd] respondent was forced to part with the said amount of ₹25 lakhs, and further, he was made to invest an amount of ₹9,50,000/- more, for carrying out maintenance works of the building in the property. Had there been no such representation, the 2[nd] respondent would not have entered into such an agreement and would not have parted with an amount of ₹25 lakhs, and he would not have invested a further amount of ₹9,50,000/- in the property, it is argued. CRL.M.C.No. 3273 of 2016 -: 5 :- 5. According to the learned counsel for the petitioners, nobody can be permitted to transform a civil liability into a criminal liability by giving false cloak to the transaction in order to force a settlement. The learned counsel has invited the attention of this Court to the decision in _**Rajib Ranjan and others v. R. Vijayakumar**_ [2014(2) KLD 942(SC)] wherein the Apex Court has relied on the decision in _**State of Haryana v. Bhajan Lal** [AIR 1992 SC 604_ ]. In paragraph 17 of the above decision it was held: _“In State of Haryana v. Bhajan Lal, this Court has laid down principles on which Court can quash the criminal proceedings under Section 482 Cr.P.C. These are as follows_ : _“102 (1). Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused._ CRL.M.C.No. 3273 of 2016 -: 6 :- _(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by Police Officers under Section 156(1) of the Code except under an order of a Magistrate within he purview of Section 155(2) of the Code._ _(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused._ _(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code._ _(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of_ CRL.M.C.No. 3273 of 2016 -: 7 :- _which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused._ _(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for othe grievance of the aggrieved party._ _(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”_ _Principle Nos.6 and 7 are clearly applicable in the present case.”_ 6. True that in a case wherein a purely civil liability is CRL.M.C.No. 3273 of 2016 -: 8 :- attempted to be transformed into a criminal liability by giving a false cloak to the transaction, the same cannot be permitted, and such an unscrupulous litigant should not be permitted to have the luxury of a criminal complaint for getting forcible settlement of the matter. 7. The attention of this Court has been invited to the decision in _**Mohammed Ibrahim v. State of Bihar** [(2009) 8 SCC 751]_ wherein it was held in paragraph 8 as follows: _“This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several_ CRL.M.C.No. 3273 of 2016 -: 9 :- _disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P.[2000 (2) SCC 636] and Indian Oil Corporation v. NEPC India Ltd.[2006 (6) SCC 736]. Let us examine the matter keeping the said principles in mind._ 8. In the decision in _**Muhammed Ibrahim**_ ( _**supra**_ ) it was clearly held that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, the same will have to be tried as a criminal offences, even if they also amount to civil disputes. Here, in this particular case, it is true that the 2[nd] respondent could have sued the petitioners for specific performance. According to the learned counsel for the 2[nd] respondent, if running of the resort is not possible in the building in the property, there is no meaning in purchasing the said property. Further, according to the 2[nd] respondent, he wanted to run the resort CRL.M.C.No. 3273 of 2016 -: 10 :- in the property and it was for that purpose alone he came forward willingly to purchase the said property. According to him, by making a false representation that the first petitioner was holding a licence for running the resort in the building and the resort was being conducted by her in the building, he was trapped in the transaction and made to part with an amount of ₹25 lakhs as part of consideration and to invest a further amount of ₹9,50,000/- for carrying out the maintenance and repair works of the building. In case, it is possible for the complainant to maintain such a case and to prove such a case beyond reasonable doubt, it cannot be said that it will not invite the ingredients of Sections 420 and 415 IPC. 9. Matters being so, the present stage is too premature to conclude that the complaint in question and Annexure A1 FIR can be thrown out by treating it as merely one of civil in nature. Of course, on the culmination of the investigation and afterwards, the petitioners can forward CRL.M.C.No. 3273 of 2016 -: 11 :- such a challenge, in case they are entitled. Therefore, this Crl.M.C. is only to be dismissed, and I do so. In the result, this Crl.M.C. is dismissed. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.