Rajeev vs Sub Inspector Of Police
2021 Latest Caselaw 6473 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

   TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                    Crl.Rev.Pet.No.811 OF 2019

  AGAINST THE ORDER/JUDGMENT IN CMP NO.3352/18 IN CC 2300/2016 OF
JUDICIAL MAGISTRATE OF FIRST CLASS - II (FOREST OFFENCES), PUNALUR


REVISION PETITIONERS/ACCUSED IN C.C.2300/16:

      1      RAJEEV, AGED 53 YEARS
             S/O.KRISHNA PILLAI, RESIDING AT RAJ BHAVAN,
             KARAVALOOR P.O., KARAVALOOR VILLAGE, PUNALUR TALUK,
             KOLLAM DISTRICT, PINCODE-691333.

      2      AJITHA KUMARI AMMAL,
             AGED 48 YEARS
             W/O.RAJEEV, RESIDING AT RAJ BHAVAN, KARAVALOOR P.O.,
             KARAVALOOR VILLAGE, PUNALUR TALUK,
             KOLLAM DISTRICT, PINCODE-691333.

             BY ADVS.
             SRI.M.RAJENDRAN NAIR (THONNALLOOR)
             SRI.A.D.SHAJAN
             SRI.SREEJITH R.NAIR

RESPONDENTS/RESPONDENTS:

      1      SUB INSPECTOR OF POLICE,
             PUNALUR POLICE STATION, KOLLAM DISTRICT-691333.

      2      STATE OF KERALA,
             REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
             KERALA, ERNAKULAM, KOCHIN-31.


             PUBLIC PROSECUTOR SRI.E.C.BINEESH

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.Rev.Pet.No.811 OF 2019                 2




                                    ORDER

The accused Nos.1 & 2 came up against the

dismissal of the discharge petition. Crime was

registered based on a reference of a complaint under

Section 156 (3) Cr.P.C. for the offence under

Sections 420, 406 and 120(b) r/w 34 of IPC. The only

allegation in the complaint is that the accused Nos.1

and 2 failed to perform their part of contract as per

the contract for sale of immovable property.

Discharge application submitted was dismissed by the

learned Magistrate, without going into whether the

allegation would disclose the alleged offences.

Breach of an obligation in performing part of

contract will not attract either the offence under

Section 406 IPC or 420 IPC. The complaint itself and

its reference under Section 156(3) Cr.P.C. cannot be

sustained since there is no disclosure of commission

of any cognizable offence even going by the

complaint. It is so unfortunate that a final report

was submitted for the said offence after

investigation pertaining to a civil dispute. The

jurisdiction vested with the learned Magistrate has

not been exercised in its correct perspective, which

has resulted in miscarriage of justice. The

non-disclosure of a cognizable offence even by the

complaint was not properly understood by the learned

Magistrate. The learned Magistrate ought to have

allowed the discharge application.

Hence, Crl.R.P is allowed. The order passed by

the Magistrate rejecting the discharge application is

set aside. The discharge application is allowed,

discharging accused Nos.1 and 2.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY//

P.A. TO JUDGE