Yash Thomas and Others v. State of Kerala and Monamma Kokkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941** ## **Crl.MC.No.7080 of 2018** **CC 1892/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT-VIII, ERNAKULAM CRIME NO.1321/2015 OF KADAVANTHRA POLICE STATION, ERNAKULAM** ## **PETITIONERS/ACCUSED NO.1&5:** - **1 YASH THOMAS, AGED 37 YEARS, ADVOCATE, S/O LATE M.J.THOMAS, THYKKOTTATHIL MANNULLY, MANNULLY ROAD, CHILAVANNOR, COCHIN 682020, PRESENTLY AT PERUVELY HOUSE, SYRIAN CHURCH ROAD, ERNAKULAM-682031.** - **2 PHILOMINA THOMAS, AGED 73 YEARS, HOUSE WIFE, W/O LATE M.J.THOMAS, THYKKOTTATHIL MANNULLY, MANNULLY ROAD, CHILAVANNOR, COCHIN 682020,PRESENTLY AT PERUVELY HOUSE, SYRIAN CHURCH ROAD, ERNAKULAM-682031.** - **3 NISHY, AGED 40 YEARS, ADVOCATE, D/O LATE M.J.THOMAS, THYKKOTTATHIL MANNULLY, MANNULLY ROAD, CHILAVANNOR, COCHIN-682020, PRESENTLY AT PERUVELY HOUSE, SYRIAN CHURCH ROAD, ERNAKULAM-682 031.** - **4 CHANCHAL THOMAS, AGED 31 YEARS, PH.D STUDENT, D/O LATE M.J.THOMAS, THYKKOTTATHIL MANNULLY, MANNULLY ROAD, CHILAVANNOR, COCHIN 682020, PRESENTLY AT PERUVELY HOUSE, SYRIAN CHURCH ROAD, ERNAKULAM-682 031.** - **5 SHEETHAL THOMAS, AGED 31 YEARS, PH.D.STUDENT, D/O LATE M.J.THOMAS, THYKKOTTATHIL MANNULLY MANNULLY ROAD, CHILAVANNOR, COCHIN 682020, PRESENTLY AT PERUVELY HOUSE, SYRIAN CHURCH ROAD, ERNAKULAM0-682 031.** **BY ADVS. SRI.G.SANTHOSH KUMAR (P). SRI.SOMAN P.PAUL** Crl.MC.No.7080 of 2018 2 ## **- RESPONDENT/DE FACTO COMPLAINANT AND STATE:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 MONAMMA KOKKAD, W/O JOSE ANTONY KOKKAD, KOKKAD HOUSE, AMBELIPADAM ROAD, VYTILLA, COCHIN0-682 019. BY ADV. SRI.ABRAHAM JOHN SRI. AJITH MURALI, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.7080 of 2018 3 ## **ORDER** The petitioners herein are the accused in C.C.No.1892 of 2016 on the files of the Judicial First Class Magistrate Court-VIII, Ernakulam. They have been summoned to answer a charge under Sections 406, 417, 418 and 420 IPC r/w Section 34 of the IPC. 2. Facts germane to the filing of this petition lie in a narrow compass:- The de facto complainant is a social worker. The 1[st] petitioner is a lawyer and the son of Late M.J.Thomas. The petitioners 3 to 5 are his siblings and the 2[nd] petitioner is his mother. According to the de facto complainant, in the month of November, 2013, Sri.M.J.Thomas along with the 1[st] petitioner approached the her and offered to sell a property having an extent of 20 cents situated at Elamkulam Village together with a residential building. Though they insisted for an advance payment of Rs. 5 lakhs, the same was not paid. Later, in the month of December, 2013, M.J.Thomas along with the 1[st] petitioner approached her and sought for an advance amount of Rs.3 lakhs. After much persuasion, a sum of Rs.3 lakhs was handed over. An agreement styled as a ‘preliminary agreement’ signed by M.J.Thomas and the de facto complainant was executed. The 1[st] petitioner signed as a witness. The total consideration was fixed at Rs.3.2 crores and the manner of payment was also detailed. It was also mentioned in the agreement that the property is mortgaged with the State Bank of Hyderabad and there were loan arrears to the tune of Rs.34.20 lakhs. According to the de facto Crl.MC.No.7080 of 2018 4 complainant, M.J.Thomas did not contact her thereafter. Later, on enquiry, she realised that M.J.Thomas was no more. In the said circumstance, she contacted the 1[st] petitioner herein and demanded that the sale deed be executed. However, her demand was not complied with. While so, she came to know that on 26.03.2015, the petitioners sold the property to the accused Nos.6 and 7 in the complaint. Alleging that the petitioners had acted with intent to defraud the de facto complainant and to cause wrongful loss, a complaint was lodged before the learned Magistrate on 18.09.2015, which was forwarded to the police and Crime No.1321 of 2015 was registered. After investigation, final report was laid before the court below on 19.03.2016. 3. Heard Sri.G.Santhoshkumar, the learned counsel appearing for the petitioners, Sri.Abraham John, the learned counsel appearing for the 2[nd] respondents and the learned Public Prosecutor. 4. It is submitted by Sri.Santhoshkumar that the agreement for sale was entered into between M.J.Thomas and the 2[nd] respondent in the month of December, 2013. Instead of suing M.J.Thomas before the civil court for specific performance of an agreement or for return of advance amounts, the 2[nd] respondent has ventured to file a criminal complaint against the family members of late M.J.Thomas, which is unsustainable, contends the learned counsel. At any rate, the petitioners herein, who are the legal heirs, cannot be proceeded against in a criminal court for the breach committed by M.J.Thomas. Crl.MC.No.7080 of 2018 5 5. The learned counsel appearing for the 2[nd] respondent has vehemently refuted the submissions of the learned counsel appearing for the petitioners. It is submitted that amount was handed over on the strength of a preliminary agreement which was executed based on the persuasion by the 1[st] petitioner herein. It is fairly submitted that the 2[nd] respondent did not sue on the basis of original consideration in an attempt to get back the amount which was paid. 6. I have considered the submissions advanced and perused the materials made available. It appears that a sum of Rs.3 lakhs was handed over by the 2[nd] respondent to Sri.M.J.Thomas and a document styled as 'preliminary agreement' was executed by him. Within the time stipulated in the agreement, the sale deed was not executed or registered. After a lapse of several years, and that too, after the death of the executant, the 2[nd] respondent has come forward with a complaint implicating the legal heirs of the executant. They are sought to be made constructively liable for the failure of Sri.M.J.Thomas to honour the agreement, which he had entered into. The petitioners herein, except for being the legal heirs of late M.J.Thomas, cannot be mulcted with criminal liability on account of the failure of Sri.M.J.Thomas to perform his part of the promise. The mere fact that the 1[st] petitioner had signed as a witness to the agreement will not attract penal liability. There is no explanation as to why the 2[nd] respondent failed to raise her claim when M.J.Thomas was alive. Even if the Crl.MC.No.7080 of 2018 6 agreement was on unstamped paper, the 2[nd] respondent could have sued on original consideration for realising the advance amount. 7. As rightly submitted by the learned counsel appearing for the petitioners, in order to attract the offence under Section 420 of the IPC, the petitioners should have an intention to deceive at the time when the inducement was made. In the same manner, to attract the offence of breach of trust, the accused must have been entrusted with property and they must be shown to have misappropriated the property or disposed it of in violation to such trust. In the case on hand, there is not even a semblance of material to attract either of the offences. As has been held by the Apex Court in **Indian Oil Corporation v. NEPC India Ltd.** [(2006) 6 SCC 736], there is a growing tendency on the part of certain litigants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature. This is with a view to apply pressure on the accused to force them to come to a settlement. The criminal courts are to ensure that proceedings before them are not used for settling scores or to pressurize parties to settle disputes. In the facts of the instant case, I have no doubt in my mind that the allegations will not constitute the offence, either under Section 406 or under Section 420 of the IPC. 8. It is by now settled that the powers possessed by this Court under Section 482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. However, if on appreciation of the final Crl.MC.No.7080 of 2018 7 report as a whole and if it appears that the ingredients of the offence are absent and that the continuance of proceedings will only result in abuse of process, this Court will be well justified in quashing the proceedings in exercise of its inherent powers. Having gone through the entire materials, I am of the considered view that the initiation of prosecution proceedings against the petitioners herein cannot be regarded as a legitimate exercise. None of the ingredients are made out. It would be an abuse of process of court to allow any action which would result in injustice. I am satisfied that the initiation of prosecution proceedings would amount to abuse of process of court and its quashment would serve the ends of justice. In the result, this petition will stand allowed. Annexure-A5 final report and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.1892 of 2016 on the file of the Judicial First Class Magistrate Court-VIII, Ernakulam are quashed. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V.,** **JUDGE** sd Crl.MC.No.7080 of 2018 8 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE A1**|**CERTIFIED COPY OF THE FIR NO.1321 OF 2015**| ||**OF KADAVANTHRA POLICE STATION DATED**| ||**1.10.2015.**| |**ANNEXURE A2**|**TRUE LEGIBLE COPY OF THE FIR NO.1321 OF**| ||**2015 OF KADAVANTHRA POLICE STATION DATED**| ||**1.10.2015.**| |**ANNEXURE A3**|**CERTIFIED COPY OF CMP NO.204 OF 2015**| |**ANNEXURE A4**|**TRUE LEGIBLE COPY OF CMP NO.204 OF 2015**| |**ANNEXURE A5**|**CERTIFIED COPY OF FINAL REPORT IN CC**| ||**NO.1892 OF 2016 ON THE FILES OF JUDICIAL**| ||**FIRST CLASS JUDICIAL MAGISTRATE COURT-VIII,**| ||**ERNAKULAM.**| |**ANNEXURE A6**|**TRUE LEGIBLE COPY OF FINAL REPORT IN CC**| ||**NO.1892 OF 2016 ON THE FILES OF JUDICIAL**| ||**FIRST CLASS JUDICIAL MAGISTRATE COURT-VIII,**| ||**ERNAKULAM.**| |**ANNEXURE A7**|**JUDGMENT DATED 7.4.2015 IN OS NO.208 OF**| ||**2014.**| |sd||