P.M.Nafeesa Basheer vs P.T.Sundaran
2022 Latest Caselaw 10316 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                     CRL.MC NO. 2540 OF 2017
  AGAINST    CC 22/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                       COURT-IV, KOZHIKODE
PETITIONERS/ACCUSED 1, 2, 4 AND 5:

    1       P.M.NAFEESA BASHEER
            AGED 56 YEARS, D/O.HASSAN KOYA P.P.,
            WEST NOOK, EXHIBITION ROAD, WEST HILL P.O.,
            KOZHIKOE-673005.

    2       K.V. BASHEER
            AGED 59 YEARS, S/O.K.V. KUNHAMMED,
            WEST NOOK, EXHIBITION ROAD, WEST HILL P.O.,
            KOZHIKOE-673005.

    3       ABDUL NAZAR
            AGED 50 YEARS, S/O. UTTANKOYA,
            KACHEERIYAMBALAM,P.O. KALLAI, ENNAPPADAM,
            KOZHIKODE-673003.

    4       IMBAVA
            AGED 57 YEARS, S/O.P.I ALIKOYA HAJI,
            BUSINESS, P.I. HOUSE, MANANTHALAPALAM,
            ENNAPADAM, FRACIS ROAD,P.O. KALLAI,
            KOZHIKODE-673003.

            BY ADVS.
            SRI.V.V.SURENDRAN
            SRI.P.A.HARISH



RESPONDENTS/COMPLAINANT AND STATE:

    1       P.T.SUNDARAN
            AGED 55 YEARS,
            S/O. LATE VELAYUDHAN P.T, 8/43,
            KURIYAL LANE, NAGARAM AMSOM DESOM,
 CRL.MC NO. 2540 OF 2017

                                 2


          KOZHIKODE TALUK,KOZHIKODE-673032.

    2     STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM-682 031.

          BY ADV SRI.SUNNY MATHEW


OTHER PRESENT:

          SRI SANGEETHA RAJ-PP




     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 2540 OF 2017

                                 3


                           O R D E R

This Crl.M.C has been filed to quash all further

proceedings in C.C.No.22 of 2017 on the files of the

Judicial First Class Magistrate Court-IV, Kozhikode (for

short 'the court below').

2. The petitioners are accused Nos.1, 2, 4 and 5.

1st respondent is the de facto complainant.

3. The offences alleged against the petitioners are

punishable under Sections 406, 420 and 506(i) of IPC.

4. The 1st petitioner is the owner of the building

bearing No.11/311 situated at Chalappuram, Kozhikode. The

mother of the 1st respondent took the said building on

licence from the 1st petitioner to run a ration shop, as

per the agreement dated 01.08.2012 for a period 11

months. It was subsequently extended for a further period

of 11 months. According to the 1 st respondent, even though

at the time of entrustment of the building and the

execution of the licence agreement, an advance amount of CRL.MC NO. 2540 OF 2017

Rs.50,000/- was given by him to the 2 nd petitioner in the

presence of the remaining petitioners, the petitioners

clandestinely omitted to incorporate the receipt of the

advance amount in the licence agreement and thus cheated

him. It is further alleged that when he questioned the

same, the petitioners criminally intimidated him.

5. I heard Sri.V.V.Surendran, the learned counsel

for the petitioners, Sri.Sunny Mathew, the learned

counsel for the 1st respondent and Sri.Sangeetha Raj, the

learned Public Prosecutor.

6. Initially a complaint was filed by the mother of

the 1st respondent before the Sub Inspector of Police, but

no crime was registered. Again another complaint was

filed before the DGP which also met with the same fate.

Thereafter, the 1st respondent filed Ann.A7 private

complaint before the court below. The court below after

conducting enquiry under Section 202 of Cr.P.C, took the

complaint on file as C.C.No.22 of 2017 and issued process CRL.MC NO. 2540 OF 2017

to the petitioners.

7. The learned counsel for the petitioners

Sri.V.V.Surendran submitted that even if the entire

averments mentioned in Ann.A7 complaint is believed at

its entirety, the offence under Sections 406, 420 and

506(i) of IPC will not be attracted. The learned counsel

further submitted that the facts and circumstances would

show that Ann.A7 has been maliciously instituted by the

1st respondent against the petitioners.

8. Ann.A1 is the licence agreement executed between

the 1st respondent and 1st petitioner. There is absolutely

no mention in the said licence agreement with regard to

the advance payment. It is pertinent to note that the 1 st

respondent is the witness to the said agreement. When the

initial period of licence was extended, there was an

endorsement regarding the extension in the agreement. The

1st respondent is a witness to the said endorsement as

well. There is nothing in the said endorsement also with CRL.MC NO. 2540 OF 2017

regard to the payment of advance amount. The records

would further show that since the 1 st respondent defaulted

the payment of licence fee and refused to surrender the

building, the 1st petitioner filed suit for mandatory

injunction and also for recovery of arrears of licence

fee and pending the suit, the building was surrendered.

It was thereafter, the police complaints as well as

Ann.A7 complaint was filed.

9. A reading of Ann.A7 complaint would show that

none of the ingredients of Sections 406, 420 and 506(i)

of IPC are attracted. There is nothing to attract the

ingredients of criminal breach of trust against the

petitioners. There is no averment in the complaint that

the amount was entrusted to the 1st petitioner. There is

also no averment to attract the ingredients of Section 34

of IPC. There is also no averment to the effect that the

petitioners with dishonest intention induced to deliver

any property so as to attract the offence of cheating. CRL.MC NO. 2540 OF 2017

Ann.A7 complaint was filed so belatedly after the suit

was decreed. The allegation of criminal intimidation also

is so vague and improbable.

For the reasons stated above, I am of the view that

no purpose will be served in proceeding with the matter

any further. Accordingly, all further proceedings in

C.C.No.22 of 2017 on the files of the Judicial First

Class Magistrate Court-IV, Kozhikode, are hereby quashed.

This Crl.M.C is allowed as above.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE AS CRL.MC NO. 2540 OF 2017

APPENDIX

PETITIONER'S ANNEXURES:

ANNEXURE A1 A TRUE COPY OF THE AGREEMENT WITH THE ENDORSEMENT

ANNEXURE A2 TRUE COPY OF THE PLAINT BEFORE THE MUNSIFF COURT, KOZHIKODE AS O.S.NO.940/2014.

ANNEXURE A3 A TRUE COPY OF THE WRITTEN STATEMENT IN THE SUIT DATED 10.06.2015.

ANNEXURE A4 A TRUE COPY OF THE JUDGMENT OF THE MUNSIFF COURT, DATED 08.09.2016

ANNEXURE A5 A TRUE COPY OF THE JUDGMENT OF THE MUNSIFF COURT, DATED 21.01.2017

ANNEXURE A6 A TRUE COPY OF THE COMPLAINT BEFORE THE DIRECTOR GENERAL OF POLICE, KOZHIKODE.

ANNEXURE A5 A TRUE COPY OF THE COMPLAINT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-IV, KOZHIKODE.