Kerala High Court
Karthika Muthukrishnan vs State on 30 September, 2024
Author: P. V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:73529
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
CRL.MC NO. 2278 OF 2016
CRIME NO.295/2010 OF Fort Police Station, Thiruvananthapuram
AGAINST THE ORDER IN CC NO.1706 OF 2013 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,THIRUVANANTHAPURAM
PETITIONERS/ACCUSED NOS.1 AND 3:
1 KARTHIKA MUTHUKRISHNAN, W/O MUTHUKRISHNAN, HOUSE
NO.28, GANAPATH VEEDU, SREVARAHA NAGAR, MUTTATHARA
VILLAGE, THIRUVANANTHAPURAM.
2 SASIKALA, HOUSE NO.28, GANAPATH VEEDU, SREVARAHA
NAGAR, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.
S.GOPAKUMARAN NAIR (SR.)
P.K.ABDU RAHEEM
P.CHANDRASEKHAR
P.A.MOHAMMED SHAH
MARY RESHMA GEORGE
P.M.MAZNA MANSOOR
K.NANDAKUMAR
S.PRASANTH
P.SREEKUMAR
SOORAJ T.ELENJICKAL
RESPONDENTS/COMPLAINANT:
1 STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA,ERNAKULAM.
ADDL R2 VIJAYALAKSHMI, D/O SARASWATI BHAI,TC 28/2847.
SARASWATI SADHANAM, AMBHUJA VILASOM ROAD, THAMBANOOR
WARD,VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM
[ADDL R2 IS IMPLEADED AS PER ORDER DATED 08.09.2016
Crl.M.C.Nos. 2278 and 4108 of 2016
2
2024:KER:73529
IN CRL M A 9567/2016 IN CRL.M.C.2278/2016]
OTHER PRESENT:
SRI.SANGEETHARAJ.N.R, PP
SRI M SREEKUMAR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
30.09.2024, ALONG WITH Crl.MC.4108/2016, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
Crl.M.C.Nos. 2278 and 4108 of 2016
3
2024:KER:73529
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
CRL.MC NO. 4108 OF 2016
AGAINST THE ORDER IN CC NO.3307 OF 2013 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, THIRUVANANTHAPURAM
PETITIONERS/ACCUSED 2, 3 AND 4:
1 KARTHIKA MUTHUKRISHNAN, HOUSE NO.28(A)GANAPATH VEEDU,
SREEVARAHAM NAGAR, MUTTATHARA VILLAGE,
THIRUVANANTHAPURAM.
2 SASIKALA
DO- DO-
3 BRAHMANAYAKAM, T.C.25/1978, GANDHARI AMMAN KOVIL
STREET, SECRETARIAT WARD, VANCHIYOOR VILLAGE,
THIRUVANANTHAPURAM.
BY ADVS.
DR.S.GOPAKUMARAN NAIR (SR.)
SMT.V.A.HARITHA
SRI.P.A.MOHAMMED SHAH
SMT.P.M.MAZNA MANSOOR
SRI.SOORAJ T.ELENJICKAL
SMT.SANDHYA R.NAIR
RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
ADDL R2 AMBIKA, D/O.SEETHMMA, TC-19/1063
THIIVIKRAMANGALAM DESOM, THAMALAM, MUDAVAN MUGAL WARD
THIRUMALA VILLAGE, THIRUVANANTHAPURAM 695 006
[ADDL R2 IMPLEADED AS PER ORDER DATED 08.09.2016 IN
CRL M A NO.9566/2016 IN CRL M C 4108/16]
Crl.M.C.Nos. 2278 and 4108 of 2016
4
2024:KER:73529
BY ADV SRI.SHAJIN S.HAMEED
SRI SANGEETHARAJ N R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
30.09.2024, ALONG WITH Crl.MC.2278/2016, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
Crl.M.C.Nos. 2278 and 4108 of 2016
5
2024:KER:73529
P. V. KUNHIKRISHNAN, J.
-------------------------------------------
Crl.M.C.Nos.2278 and 4108 of 2016
-------------------------------------------
Dated this the 30th day of September, 2024
COMMON ORDER
I am disposing of these two Criminal Miscellaneous Cases by a common order because, almost same allegations are there against the petitioners. The 1st and 2nd petitioners in these cases are common.
2. I will narrate the facts in Crl.M.C.No.2278/2016 first:
The petitioners herein are accused Nos.1 and 3 in C.C.No.1706/2013 on the file of Judicial First Class Magistrate Court-II, Thiruvananthapuram, arising from Crime No.295/2010 of Fort Police Station. Petitioners are wife and mother-in-law of the 2 nd accused in the above case.
3. The prosecution allegation in the final report is that, the accused in pursuance of criminal conspiracy to cheat CWs.1 Crl.M.C.Nos. 2278 and 4108 of 2016 6 2024:KER:73529 to 3 and to make unlawful gain made the said witnesses believe that money can be lent on small interest and thereby got the properties owned by CWs 1 to 3, having an extent of 4 cents and 3 cents comprised in Sy.Nos. 847/2/2 and 847/2 respectively of Vanchiyoor Village and the respective buildings thereon, registered on sale in the name of the 1st accused by getting the sale deed executed for a sale consideration of ₹.3,38,000/- as security for the loan. It is the further case of the prosecution that the accused remitted ₹.6,00,000/- in the Indian Overseas Bank, Killippalam Branch and also ₹.9,00,000/- in the Over bridge branch of the State Co- operative Bank towards the loan arrears of CWs 1 to 3 and paid Rs.10,00,000/- in cash directly to CWs 1 and 2. It is the further case of the prosecution that the accused mortgaged the above properties in the Indian Overseas Bank, Karamana Branch in the name of their business establishments and secured an amount of ₹.50 lakhs as Over Draft and the accused got the above properties assigned in the name of 1st accused contrary to the oral understanding and by converting the water and electricity connections and ownership of Crl.M.C.Nos. 2278 and 4108 of 2016 7 2024:KER:73529 the houses in the name of the 1st accused. It is also alleged that the accused collected ₹.7 lakhs towards the interest for the loan in seven months as ₹.1 lakh per month at the rate of 48% excess interest and the accused refused to register back the sale deed of the properties to CWs 1 to 3 on offer to repay the above loan of ₹.25 lakhs and when demanded by CWs 1 to 3, the accused tortured the witnesses mentally and threatened them through anti social elements. Hence, it is alleged that the accused committed the offences punishable under Sections 420, 384, 406, 120(b) r/w 34 of IPC and also under Sections 3 and 13 r/w 17 of the Kerala Money Lenders Act. Annexure-A1 is the sale deed executed by the Charge Witnesses in favour of the 1st accused and Annexure-A2 is the Final Report.
4. The complaint was filed by Charge Witness No.1 before the jurisdictional Magistrate Court which was forwarded under Section 156(3) Cr.P.C. and the crime was registered. Initially, the case was referred as evident by Annexure-A3. The referred case was re-opened against the petitioners with an ill motive of booking the 2nd accused under the Kerala Anti Social Activities (Prevention) Crl.M.C.Nos. 2278 and 4108 of 2016 8 2024:KER:73529 Act [for short, 'the KAA(P)A'] is the further submission. It is submitted that the 2nd accused challenged the same and the KAA(P)A Advisory Board allowed the case filed by the 2 nd respondent as evident by Annexure-A6. The definite case of the petitioners is that, even if the entire allegation against the petitioners in Annexure-A2 final report are accepted in toto, there is no specific overt act attributed to the petitioners who are accused Nos.1 and 3. Hence, this Criminal Miscellaneous Case is filed to quash the proceedings against the petitioners.
5. Crl.M.C.No.4108/2016 is filed by accused Nos.2, 3 and 4 in C.C.No.3307/2013 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram arising from Crime No.1821/2012 of Fort Police Station, Thiruvananthapuram. The above case was registered alleging offences punishable under Sections 468, 420 and 34 of the Indian Penal Code against the petitioners and the 1st accused. The prosecution case in brief is that, the accused in furtherance of the criminal conspiracy to grab the property of PW1 and others, the 1 st accused made CW1 believe that a Crl.M.C.Nos. 2278 and 4108 of 2016 9 2024:KER:73529 bank loan of Rs.25 lakhs would be secured to CW1 on lesser interest to renovate CW1's house on 03.01.2008, got a sale deed executed in respect of 12.75 cents of property comprised in survey no.2189 in favour of the 2nd accused and thereafter paid ₹.11,20,000/- to CW1, and later, accused Nos.1, 2 and 3 collected 48% of interest for the aforesaid amount and for the said purpose, secured signed blank cheques and signed blank papers from CW1 and further by mortgaging the above sale deed in the HDFC bank, accused 1 and 2 secured and misappropriated ₹.36 lakhs and further, when there was delay in paying the above interest @48%, the 1 st accused secured the document of the house of CW1 and mortgaged the same with the 4th accused and secured an amount of ₹.2 lakhs and the 3 rd accused unlawfully conducting chits worth lakhs of rupees from 2008 and hence it is alleged that all the accused conspired together and committed the offences punishable under Sections 406, 420, 468, 471, 120(b) r/w 34 of the Indian Penal Code. Annexure-1 is the sale deed executed by CW1 in favour of the 2 nd accused. Annexure-2 is the First Information Statement and Annexure-3 is the additional Crl.M.C.Nos. 2278 and 4108 of 2016 10 2024:KER:73529 statement recorded by the police from Charge Witness No.1. Annexure-4 is the final report. It is submitted that the final report is submitted by the police with an ill motive of booking the 1 st accused in the case under the KAA(P)A. It is also submitted that the 1 st accused challenged the KAA(P)A proceedings and the order was set aside by the KAA(P)A Advisory Board as evident by Annexure-5. According to the petitioners, a perusal of Annexures-2 and 3 disclose that the petitioners herein have absolutely no role or involvement in the overt acts alleged therein. It is submitted that, there is long and unexplained delay of 5 years in raising the complaint because Annexure-1 sale deed was executed on 03.01.2008 and Annexure-2 First Information Statement was lodged on 02.11.2012. Hence, it is alleged that, there is no specific allegation against the petitioners and therefore, the proceedings against the petitioners is an abuse of process of Court. Hence this Criminal Miscellaneous Case.
6. Heard Senior Counsel Adv.S. Gopakumaran Nair, instructed by his retaining counsel in both these cases. I also heard Adv. M. Sreekumar, who appeared for the 2 nd respondent in Crl.M.C.Nos. 2278 and 4108 of 2016 11 2024:KER:73529 Crl.M.C.No.2278/2016 and Adv.Shajin S. Hameed who appeared for the 2nd respondent in Crl.M.C.No.4108/2016.
7. Crl.M.C.No.2278/2016 is filed to quash the final report in C.C.No.1706/2013 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram. The offence alleged against the accused in the above case include the offence under Section 120(b) of the Indian Penal Code. This Court perused the final report. There is specific allegation that, there is conspiracy among the accused, including the petitioners in this case. The crux of the prosecution case is that the execution of Annexure-A1 sale deed is on a condition that the property will be re-conveyed on payment of the amount. The party respondents produced Annexure- R2(a), a judgment of the Principal Sub Judge, Thiruvananthapuram in O.S.No.392/2010. As per the above judgment, Annexure-A1 sale deed is already set aside by the civil court. The impact of this judgment in the prosecution case is a matter of evidence. The matter is to be considered by the trial court at the appropriate stage. Therefore, I am of the considered opinion that the proceedings Crl.M.C.Nos. 2278 and 4108 of 2016 12 2024:KER:73529 against the petitioners cannot be quashed in the changed circumstances.
8. Crl.M.C.No.4108/2016 is filed to quash the proceedings in C.C.No.3307/2013 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram. The prayer in this Criminal Miscellaneous Case is to quash Annexure-4 final report. In Annexure-4 final report, the offence under 120(b) is also involved. There is specific averments in the final report to the effect that, all the accused conspired together and thereafter committed the offence. According to the petitioners, they have not committed the offence. The contention raised by the petitioners in this case is to be raised before the trial court at the appropriate stage. I am of the considered opinion that, this is not a fit case to invoke Section 482 Cr.P.C to quash the proceedings.
9. After hearing the learned Senior Counsel who appeared for the petitioners in this case, I am of the considered opinion that the contention raised by the petitioners in these Criminal Miscellaneous Cases can be raised before the trial court by Crl.M.C.Nos. 2278 and 4108 of 2016 13 2024:KER:73529 filing a discharge petition. If such a discharge petition is filed, there can be a direction to the trial court to dispose the same within a time frame and not to insist the presence of the petitioners till final orders are passed in the discharge petition.
Therefore, these Criminal Miscellaneous Cases are disposed of with the following directions:
(a) The petitioners are free to file discharge petition before the trial court raising all the contentions raised in these Crl.M.Cs within 30 days from the date of receipt of a stamped certified copy of this order, if charge is not framed.
(b) Once such a discharge petition is received, the learned Magistrate will consider the same and pass appropriate orders in it, after giving an opportunity of hearing to the petitioners and the prosecutor concerned as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of the discharge petition.
(c) If such a discharge petition is filed as directed above, the learned Magistrate will not insist the personal appearance of the petitioners till discharge petition is considered.
Crl.M.C.Nos. 2278 and 4108 of 2016
14
2024:KER:73529
(d) All the contentions raised by the
petitioners in these Crl.M.Cs are left open and the petitioners are free to agitate the same before the trial court.
(e) The Registry will forward a copy of
this order to the trial court, forthwith.
Sd/-
P. V. KUNHIKRISHNAN
JUDGE
Sbna/03.10.2024
Crl.M.C.Nos. 2278 and 4108 of 2016
15
2024:KER:73529
APPENDIX OF CRL.MC 4108/2016
PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE SALE DEED EXECUTED BY CW1
INFAVOUR OF THE 2ND ACCUSED
ANNEXURE 2 TRUE COPY OF THE FIRST INFORMATION
STATEMENT IN THIS CASE DATED 2.11.2012
LODGED BY CW1 BEFORE THE FORT POLICE
STATION,THIRUVANANTHAPURAM
ANNEXURE 3 TRUE COPY OF THE ADDITIONAL STATEMENT DATED
12.03.2013
ANNEXURE 4 TRUE COPY OF THE FINAL REPORT DATED
15.10.2013
ANNEXURE 5 TRUE COPY OF THE ORDER IN O.P.53/2004 FILED
BY THE 1ST ACCUSED DATED 18.07.2014
ANNEXURE 6 TRUE COPY OF THE ORDER IN CRL.M.C.2278/2016
DATED.
Crl.M.C.Nos. 2278 and 4108 of 2016
16
2024:KER:73529
APPENDIX OF CRL.MC 2278/2016
RESPONDENT ANNEXURES
Annexure-R2(a) TRUE COPY OF THE JUDGMENT DATED 08.03.2017
IN OS NO.392/2010 OF THE PRINCIPAL SUB
COURT, THIRUVANANTHAPURAM
PETITIONER ANNEXURES
ANNEXURE A2 TRUE COPY OF THE FINAL REPORT
ANNEXURE-A3 TRUE COPY OF THE REFER CHARGE
ANNEXURE-AI TRUE COPY OF THE SALE DEED EXECUTED BY CWS
IN FAVOUR OF THE 1ST ACCUSED
ANNEUXURE A6 TRUE COPY OF THE ORDER DATED 18.07.2014.
ANNEXURE-A5 TRUE COPY OF THE PRIVATE COMPLAINT FILED BY
CW 1 BEFORE THE MAGISTRATE COURT
ANNEXURE-A4 TRUE COPY OF THE ORDER IN THE
I.A.NO.2034/2010 IN 0S.392/2010