Kerala High Court
Muhammed Kunhi vs State Of Kerala on 9 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
CRL.MC NO. 3097 OF 2020
CC 1563/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDURG,
KASARGOD
CRIME 802/2012 OF BEKAL POLICE STATION
PETITIONER/2ND ACCUSED:
MUHAMMED KUNHI
AGED 41 YEARS,S/O. ABDULLA, RESIDING AT MUKKOOD, KARAYIL
HOUSE, RAVANESWARAM P. O., CHITHARI VILLAGE, HOSDURG
TALUK, KASARAGOD DISTRICT.
BY ADVS.
JACKSON JOHNY
MUHAMMED YASIL
ROSIN JOSEPH
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
THROUGH STATION HOUSE OFFICER, BEKAL POLICE STATION,
(CRIME NO.802/2012), REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682
031. EMAIL - [email protected]
2 B. H. ABDUL KADER
AGED 54 YEARS,S/O. IBRAHIM, R/AT KALIKADAVATH HOUSE,
POOCHAKKAD, KEEKKANAM, KASARAGOD DISTRICT - 671 121.
OTHER PRESENT:
SR.PP - SRI. HRITHWIK C.S.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON
12.10.2021, THE COURT ON 09.11.2021 PASSED THE FOLLOWING:
Crl.M.C.3097/2020 2
O R D E R
Petitioner is the 2nd accused in C.C.1563/2013 pending before the
Judicial First Class Magistrate-II, Hosdurg. That case arose out of the final
report in crime 802/2012 of Bekal police station, which in turn was registered
on the strength of Annexure-A1 first information statement given by the 2 nd
respondent alleging offence under Section 420 IPC against three persons. It is
alleged that the 2nd respondent owned a lorry KL-14-E-4158, at that time the
petitioner approached him and ascertained whether he intends to sell the
vehicle. Then he met the defacto complainant accompanied by one Shan
Thomas and his partner one Prakasan and offered to purchase the lorry for
Rs.2,32,000/-. An advance payment of Rs.50,000/- was made and the balance
amount was agreed to be paid by 31.10.2012. It was also agreed that if the
amount is not paid on that day, they would be liable to pay a daily rent of
Rs.5,000/- and that the defacto complainant will be entitled to repossess the
vehicle. In spite of taking possession of the vehicle after paying Rs.50,000/-,
the balance amount was not paid and thus alleging that he was cheated by the
accused persons, that is the petitioner, the said Shan Thomas and Prakasan, a
criminal prosecution was launched and crime No.802/2012 of Bekal police
station was registered. On conclusion of investigation, Annexur-A2 charge
sheet was laid against three persons. The said Shan Thomas as the first
accused, petitioner as the 2nd accused and Prakasan as the 3rd accused, which
is now pending before the Judicial First Class Magistrate-II, Hosdurg.
2. Now the petitioner has moved this Court under Section 482 of the
Cr.P.C. for quashing the proceedings. According to him, he is totally innocent
in the deal; he had no role in the transaction; he did not receive any money
from the 2nd respondent, that there is no allegation that he had induced the
defacto complainant to enter into an agreement or deceived the defacto
complainant. The only allegation is that he had introduced the 1 st and 3rd
accused to the defacto complainant and that he was also present at the time of
the transaction. According to him, basic ingredients of cheating are absent and
therefore the matter cannot be proceeded against him. The petitioner also
invited my attention to Annexure-A4 order of this Court in Crl.M.C.
2226/2016, which was filed by the 3 rd accused for quashing the proceedings,
by the order the proceedings against the 3rd accused stood squashed.
Therefore, he prays that the proceedings against him also may be quashed.
3. I heard the learned counsel for the petitioner and also the learned
Senior Public Prosecutor. Even though notice was served on the 2 nd
respondent, he has chosen not to contest.
4. The learned counsel for the petitioner submits that the lorry deal
was based on Annexure-A3 agreement entered into between the 1 st accused
and the 2nd respondent and he is neither a party nor even a witness to the
agreement. Therefore, such an offence will not lie against him. According to
him, the defacto complainant has already repossessed the vehicle and
therefore the proceedings are continuing unnecessarily. The counsel also
relied on the decision reported in Damodaran T.V. and another v. State of
Kerala and another [2018 (1) KHC 677]. According to him, the case is
purely civil in nature and therefore the allegations will not lie against him.
5. The crime was registered on the basis of the first information
statement given by the 2nd respondent. Even though the petitioner and Mr.
Prakasan are also implicated in the allegations by the 2 nd respondent, from
Annexure-A3 agreement which is admitted in the first information statement,
it is clear that it was a deal between the 2 nd respondent and the 1st accused.
Annexure-A3 throws sufficient light into the transaction. The lorry bearing
No.KL-14-E-4158 belonged to the 2nd respondent, which was agreed to be
sold to the 1st accused for a total consideration of Rs.2,32,000/- and
possession of the same was handed over on the date of the agreement, i.e. on
20.10.2012, after receiving an advance consideration of Rs.50,000/-; the
balance amount of Rs.1,82,000/- was agreed to be paid on or before
31.10.2012. It was also stated that only the photocopy of the registration
certificate, insurance certificate etc. were given and the originals were
retained by the 2nd respondent. It was also stated that if the amount is not paid
within 31.10.2012, the 2nd respondent who is the registered owner is entitled
to repossess the vehicle and also that he is entitled to claim Rs.5,000/- daily as
rent. The agreement was signed by the 2 nd respondent and the 1st accused and
one Basheer and one Thahira are the witnesses.
6. Even though the 2nd respondent has said that it was a deal between
himself on the one side and accused Nos.1 to 3 on the other, Annexure-A3
agreement does not speak about any transaction with the petitioner. Therefore,
Annexure-A3 agreement which was reduced into writing after striking deal
between the parties, does not prove the role of the petitioner either as a person
who had purchased the lorry or even as an intermediary or a person who had
made any promise. In the circumstances, it is not known as to how he could
be implicated in a criminal proceedings.
7. Secondly, on parity of reasons also the petitioner is entitled to
succeed. Annexure-A4 order of this Court in Crl.M.C.2226/2016 indicates
that the 3rd accused had moved this Court for quashing the proceedings and
finding that there is no evidence of any transaction between the 2 nd accused
and the 3rd accused this Court quashed the proceedings against him. All the
reasonings stated by this Court for quashing the proceedings against the 3 rd
accused are liable to be borrowed for this purpose also. Moreover, the
prosecution has no case that the accused had done anything in prosecution of
their common object. It is not stated that the accused are guilty under Section
420 read with 34 of the IPC. On that reason also the allegation against the
petitioner will not sustain.
8. It is the settled proposition of law that this Court will be very slow
in quashing a proceedings especially when charge sheet is filed after
conducting investigation by the police. But here, on the face of the document
produced by the prosecution, it is evident that the petitioner has no role in the
alleged transaction. Firstly, as rightly pointed out by the learned counsel,
ingredients of Section 420 IPC are not available against the petitioner. It
could not be made out that he had made any offer or any promise or had taken
delivery of the vehicle from the 2 nd respondent. At the most he had only acted
as an intermediary. Annexure-A3, which is the best document to prove the
transaction, does not suggest any role having been played by the petitioner.
Therefore, the materials produced by the prosecution, if are uncontroverted,
will not give rise to the finding that the petitioner is guilty, such a proceedings
cannot lie against him. Here also, as noticed earlier, the documents relied on
by the prosecution do not indicate that the petitioner had any deal with the 2 nd
respondent. It is only stated in the first information statement that he was also
present at the time when the agreement was executed. If he had made any
offer or if he had played a role as that of the 1 st accused, necessarily he also
would have joined the agreement for sale; that has not been done. On these
considerations, there is no justification in proceeding against the petitioner
accusing him of offence under Section 420 IPC and therefore, there is
justification in quashing the proceedings against him. On these
considerations, I find that the petitioner is not liable to be prosecuted for
offence under Section 420 IPC and the proceedings in C.C. 1563/2013 as
against the petitioner as the 2nd accused is liable to be quashed. The Crl. M.C.
is allowed and the petitioner shall stand exonerated.
SD/-
K.HARIPAL
JUDGE
okb/6.11
//True copy// P.S. to Judge
APPENDIX OF CRL.MC 3097/2020
PETITIONER ANNEXURE
ANNEXURE A1 TRUE COPY OF THE FIR DATED 28.11.2012 IN CRIME
NO.802/2012 OF BEKAL POLICE STATION.
ANNEXURE A2 A TRUE COPY OF THE FINAL REPORT DATED
01.07.2013 IN CRIME NO.802/2012 AS NUMBERED AS
C.C.NO.1563 OF 2013 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT -II, HOSDURG.
ANNEXURE A3 A TRUE COPY OF THE JUDGMENT IN C.C.NO.1353 OF
2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT
-II, HOSDURG.
ANNEXURE A4 A TRUE COPY OF THE ORDER DATED 03.10.2016 IN
CRL.M.C.NO.2226 OF 2016 OF THIS COURT.
