Sunitha Nizar v. State of Kerala & Sameer (Crl.MC No. 6367 of 2016; Crime No. 389/2012, Paravoor Police Station, Kollam)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** ## **Crl.MC.No. 6367 of 2016** **IN CC NO.1308/2014 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, PARAVOOR** **CRIME NO. 389/2012 OF PARAVOOR POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED NO.2:** **SUNITHA NIZAR, AGED 60 YEARS, W/O. NIZAR, VADAKKUM BHAGAM, THEKKUM BHAGAM CHERI, KOTTAPPURAM VILLAGE.** **BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS /STATE & DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. (CRIME NO.389/2012 OF PARAVOOR POLICE STATION, KOLLAM).** **2 SAMEER, S/O. ASHARAF, THEKKE KEECHERI VEETTIL, PUNNA MUKKU, ULIYAKOVIL, KOLLAM EAST VILLAGE, KOLLAM.** **BY ADVS. SRI.V.JAYAPRADEEP SMT.O.A.NURIYA** **R1 BY PUBLIC PROSECUTOR SMT.K. SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC:6367/2016 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the 2[nd] accused in C.C.No.1308 of 2014 on the file of the Judicial Magistrate of First Class, Paravoor, Kollam. The 1[st] accused is the husband of the petitioner and the 3[rd] accused is one Mohammed Noufal. They are being proceeded against for having committed offence punishable under Sections 420, 463, 464, 465, 468 r/w. Section 34 of the IPC. 3. The above case arose on the strength of a complaint lodged by the 2[nd] respondent in his capacity as the Power of Attorney Holder of Dr.Mohammed Basheer, the de facto complainant. The case of the de facto complainant is that he was the owner of property having an extent of 1.80 Acres situated within the limits of Kottappuram Village. As the complainant and his family members were abroad, the accused Nos. 1 and 2 were entrusted with the management of the property. In the year 2004, a Power of Attorney was executed in favour of the 1[st] accused to enable him to deal with the property in the absence of the de facto complainant. However, Crl.MC:6367/2016 3 the 1[st] accused was not authorized to execute sale deeds or agreements in respect of the property. While so, the de facto complainant had occasion to realise that the accused Nos. 1 and 2 were not acting in his best interests. He, therefore, cancelled the Power of Attorney and intimated the same to the 1[st] accused on 31.01.2012. However, even prior to that, the accused Nos. 1 and 2 had induced the de facto complainant to part with huge sums of money by way of loan. It is further alleged that while the Power of Attorney was in force, the 1[st] accused entered into an agreement with a property broker from Hyderabad to assign the property for a consideration of Rs.2.4 lakhs per Cent. There were various correspondences between the de facto complainant and the 1[st] accused in connection with the aforesaid transactions. According to the de facto complainant, in order to cause wrongful loss to him, the 1[st] accused and the petitioner wrongfully procured a pre-dated stamp paper from the 4[th] accused and executed an agreement for sale in favour of the 3[rd] accused agreeing to sell the property to him. They also concocted documents to make it appear that a sum of Rs.2 lakhs was paid by way of advance to the de facto complainant. As per the agreement entered into by the accused Nos. 1 and 3, the properties Crl.MC:6367/2016 4 were agreed to be sold for a consideration of Rs.30,000/- per Cent. It is further alleged that the 3[rd] accused, on the strength of the agreement entered into by the 1[st] accused, instituted O.S.No.122 of 2012 seeking specific performance. According to the de facto complainant, the accused Nos. 1 to 4, have connived and colluded to cause wrongful loss to him. 4. The learned counsel appearing for the petitioner would contend that, except for a vague allegation that the petitioner herein was acting hand in glove with the 1[st] accused, there is nothing to connect him with the prosecution allegations. The Power of Attorney was executed by the de facto complainant in favour of the 1[st] accused and it was the 1[st] accused, who had executed the agreement in favour of the 3[rd] accused. The petitioner has been roped in as an accused solely because she happens to be the wife of the 1[st] accused is the submission. 5. The learned counsel appearing for the de facto complainant, on the other hand, would contend that the petitioner was also a party to the conspiracy hatched by accused Nos.1 to 3. According to the learned counsel, though the Power of Attorney was Crl.MC:6367/2016 5 executed in the name of the 1[st] accused and though the transaction was between the accused Nos.1 and 3, the petitioner, who was living with the 1[st] accused, had occasion to play an active role. 6. Heard the learned Public Prosecutor and I have gone through the final report laid against the accused. 7. The dispute is in connection with the execution of an agreement for sale by the 1[st] accused on the strength of a Power of Attorney executed in his favour by the de facto complainant. The final report is laid on the premise that the petitioner had an active role to play in executing the agreement in favour of the 3[rd] accused. Except for a vague allegation that the petitioner was aware of the execution of the agreement for sale, no other act is assigned to her. 8. Now the question is whether this is a fit case, wherein the proceedings are liable to be quashed in exercise of powers under Section 482 of the Cr.P.C. It is by now settled that while exercising jurisdiction under Section 482 of the Code, this Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, Crl.MC:6367/2016 6 accusation would not be sustained. That is the function of the trial Judge. However, it is equally settled that judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by the Supreme Court in State of **Haryana v. Bhajan Lal** [1992 Crl.L.J 527]. A note of caution was, however, added that the power should be exercised sparingly and that too, in rarest of rare cases. 9. In the case on hand, I am of the considered view that the petitioner herein was roped in as an accused on very frail materials. The materials made available do not disclose the ingredients of the offence against the petitioner. The proceedings appear to be mala Crl.MC:6367/2016 7 fide, frivolous and vexatious. I am inclined to allow this petition as the continuance of proceedings against the petitioner would clearly result in abuse of process. In the result, this petition is allowed. Annexure-AIV final report and all further proceedings pursuant thereto against the petitioner now pending as C.C. No.1308 of 2014 on the file of the Judicial Magistrate of First Class, Paravoor are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** krj Crl.MC:6367/2016 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **COPY OF THE POWER OF ATTORNEY EXECUTED BY DR.POOKUNJU MOHAMMED BASHIR.** **ANNEXURE II** **COPY OF THE AGREEMENT FOR SALE ENTERED INTO BETWEEN THE FIRST ACCUSED AS POWER OF ATTORNEY OF DR.POOKUNJU MOHAMMED BASHIR AND THIRD ACCUSED DATED 30.11.2011.** **ANNEXURE III COPY OF PLAINT OS NO.735/2012 PENDING ON THE FILE OF SUB COURT, KOLLAM.** **ANNEXURE IV CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.389/2012 OF PARAVOOR POLICE STATION.** ## **RESPONDENTS’ EXHIBITS:-NIL**