Kerala High Court
Muraleedharan vs The State Of Kerala on 25 October, 2024
Author: P. V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:79786
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.MC NO. 2897 OF 2019
CRIME NO.2993/2014 OF Kayamkulam Police Station, Alappuzha
AGAINST THE ORDER IN CC NO.1368 OF 2018 OF JUDICIAL
MAGISTRATE OF FIRST CLASS , KAYAMKULAM
PETITIONERS/ACCUSED NOS.2 TO 4:
1 MURALEEDHARAN, AGED 50 YEARS, S/O. KRISHNAMOORTHI,
VEMBALIVEEDU,KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE.
2 VENU, AGED 48 YEARS, S/O. KRISHNAMOORTHI, VEMBALIL
VEEDU, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE
3 MOHANAN, AGED 48 YEARS, S/O. KRISHNAMOORTHI,
VEMBALIVEEDU, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE.
BY ADV A.SHAFEEK (KAYAMKULAM)
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA 682 011
2 THE SUB INSPECTOR OF POLICE,
KAYAMKULAM POLICE STATION, KAYAMKULAM 690 502
3 K. THAMBI, AGED 75 YEARS
S/O. NARAYANANKOCHUKUNJU, VETTATHU VADAKKATHIL,
KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE 680 533
4 GOPALAKRISHNAN, S/O. SIVARAMAN NAIR, VALIYAVILA HOUSE,
VENKULAM MURI, EDVA VILLAGE, CHERIYANKEEZHU TALUK,
THIRUVANANTHAPURAM 691 536
BY ADVS.
R.RAJASEKHARAN PILLAI
SABINA JAYAN
OTHER PRESENT:
SRI.RENJITH.T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
25.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.2897/2019
2
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P. V. KUNHIKRISHNAN, J.
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Crl.M.C.No.2897 of 2019
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Dated this the 25th day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash the
proceedings in C.C.No.1368/2018 on the file of the Judicial First Class
Magistrate Court, Kayamkulam. The petitioners are accused Nos.2 to
4 in C.C.No.1368/2018. The above case is charge sheeted alleging
offences punishable under Section 420 r/w 34 of the Indian Penal
Code. The police registered Crime No.2993/2014 based on
Annexure-1 complaint received from the Judicial First Class
Magistrate Court, Kayamkulam under Section 156(3) Cr.P.C.
2. The contents in Annexure-1 complaint is as follows:
The petitioners are brothers and the 4 th respondent is the uncle of the
petitioners. The father of the 4th respondent had 20 cents of property
and the father of the 4th respondent has three children, including the
4th respondent. The petitioners are the children of the sister of the 4 th
respondent Smt. Santhamma. The father of the 4th respondent sold 6
cents of property in connection with the marriage of Santhamma.
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Thereafter, the 4th respondent sold 4 cents of property for the purpose
of treatment of the husband of Santhamma. The balance 10 cents of
property was in possession and enjoyment of the 4 th respondent with
the consent of the petitioners. The petitioners did not question the
enjoyment of the above said 10 cents of property by the 4th
respondent. When the 4th respondent decided to sell the above said 10
cents of property, the 3rd respondent approached the 4th respondent
and expressed his willingness to purchase the above said property for
his son Sri.Madhu. The 3rd petitioner informed the 3rd respondent
that the petitioners have no right over the property and they would
not raise any right over the property in future. Based on the above
undertaking, the 3rd respondent on 23.10.2001 purchased the above
property for his son utilizing the pensionary benefits of the 3 rd
respondent and the money in the possession of the son of the 3 rd
respondent. The 3rd petitioner was a witness in the sale deed and
petitioners 1 and 2 through the 3rd petitioner consented for the above
said transaction. The son of the 3rd respondent has been residing in
the house of the above said property after the purchase. While things
being so, the petitioners in order to get some undue enrichment and
to deceive the son of the 3rd respondent filed O.S.No.388/2009
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against the 1st accused and the son of the 3rd respondent for the
partition of the above said 10 cents of property purchased by the son
of the 3rd respondent as the mother of the petitioners is also entitled
for half the share of her father's property. The petitioners filed the
above suit on a conspiracy that hatched between the petitioners and
the 4th respondent. The Munsiff Court, Kayamkulam decreed the suit.
In appeal, the appellate court remanded the case back to the Munsiff
Court to rectify the mistakes crept in the judgment. The petitioners
filed appeal before this Court and the appeal filed by the petitioners
were allowed. The son of the 3rd respondent filed review petition and
it is pending before this Court. The son of the 3 rd respondent
purchased the property only on the undertaking given by the
petitioners and the 4th respondent that the property belongs to the 4 th
respondent alone. Due to the dishonest act of the petitioners and the
4th respondent, the son of the 3rd respondent sustained loss to the tune
of ₹.20 lakhs and hence the petitioners and the 4 th respondent
committed the offence under Section 420 IPC. This is the sum and
substance of the allegation in Annexure-I complaint.
3. According to the petitioners, even if the entire
allegations are accepted, no offence is made out against the
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petitioners. The counsel for the petitioners also submitted that, this
prosecution is initiated when the 3rd respondent failed in the civil
case. The counsel for the 3rd respondent submitted that the
contentions raised by the petitioners are to be raised before the trial
court at the appropriate stage and this Court may not interfere with
the same. The public prosecutor also take the same view.
4. This Court considered the contention of the
petitioners and the 3rd respondent. Admittedly, the petitioners filed
O.S.No.388/2009 for a declaration that, any document executed by
the 1st accused in this case in favour of the son of the 3rd respondent
herein would not affect the half right of the petitioners over the plaint
schedule property in the suit and the subject matter of the property in
this case and also for a partition of the above said property.
Annexure-3 is the complaint. The 4th respondent filed a written
statement as evident by Annexure-4. The Munsiff Court decreed the
suit holding that the petitioners are entitled to have half share in the
plaint schedule property as evident by Annexure-5 judgment dated
14.11.2011 in O.S.No.388/2009. Against the judgment and decree, the
son of the 3rd respondent filed A.S.No.34/2012 on 03.12.2013 and the
Additional District Court-II, set aside the judgment and decree and
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remanded the case for fresh disposal. Annexure-6 is the judgment of
the Additional District Court-II, Mavelikkara. The petitioners
challenged Annexure-6 by filing FAO No.62/2014 before this Court
and this Court as per Annexure-7 judgment set aside Annexure-6
judgment. The son of the 3rd respondent filed R.P.No.631/2014 to
review the judgment in FAO 62/2014 and RP is also dismissed as
evident by Annexure-8. After disposal of the RP No.631/2014 on
28.08.2014. Annexure-I complaint was filed by the 3 rd respondent on
30.09.2014 alleging offence punishable under Section 420 IPC.
Subsequently after Annexure-7 judgment, the appellate court
delivered Annexure-9 judgment dismissing the appeal and admittedly
the son of the 3rd respondent filed the second appeal before this Court
and R.S.A.No. 97/2016 is pending before this Court.
5. The prosecution case against the petitioners is that,
they colluded with the 1st accused and cheated the defacto
complainant by suppressing their right in the property which is
purchased by the son of the defacto complainant. I am of the
considered opinion that the petitioners only raised their legal claim
before the competent civil court and they succeeded the case in the
civil court. Now it is pending in second appeal before this Court. In
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such circumstances, the ingredients under Section 420 IPC is not
made out.
6. In Sharif Ahmed v. State of Uttar Pradesh
[2024 KHC 6251], the Apex Court observed the basic ingredients of
Sec. 420 IPC. The relevant portion of the judgment is extracted
hereunder :
37. "The chargesheet states that the offence
under S.420 is not made out. The offence of cheating under
S.415 of the IPC requires dishonest inducement, delivering
of a property as a result of the inducement, and damage or
harm to the person so induced. The offence of cheating is
established when the dishonest intention exists at the time
when the contract or agreement is entered, for the essential
ingredient of the offence of cheating consists of fraudulent
or dishonest inducement of a person by deceiving him to
deliver any property, to do or omit to do anything which he
would not do or omit if he had not been deceived. As per the
investigating officer, no fraudulent and dishonest
inducement is made out or established at the time when the
agreement was entered."
7. In the light of the above principle, this Court
perused the final report and the supporting documents produced by
the prosecution against the petitioners. I am of the considered
opinion that the prosecution against the petitioners is unsustainable
because no offence under Section 420 IPC is made out. But I make it
clear that the prosecution can continue against the 1 st accused and the
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jurisdictional court will consider the same untrammeled by any
observation in this order.
Therefore, this criminal miscellaneous case is allowed. All
further proceedings against the petitioners alone in
C.C.No.1368/2018 on the file of the Judicial First Class Magistrate
Court, Kayamkulam, are quashed. The Registry will forward a copy of
this order to the jurisdictional court forthwith.
Sd/-
P. V. KUNHIKRISHNAN
JUDGE
Sbna/Jv/25.10.2024
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PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE PRIVATE COMPLAINT FILED BY
THE 3RD RESPONDENT
ANNEXURE 2 CERTIFIED COPY OF THE FINAL REPORT IN CC NO.
ANNEXURE 3 TRUE COPY OF THE PLAINT IN O.S NO. 388/2009
FILED BEFORE THE MUNSIFF COURT, KAYAMKULAM
ANNEXURE 4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE 1ST ACCUSED/2ND DEFENDANT IN THE SUIT
ANNEXURE 5 TRUE COPY OF THE JUDGMENT IN O.S NO.
388/2009 OF MUNSIFF'S COURT, KAYAMKULAM.
ANNEXURE 6 TRUE COPY OF THE JUDGMENT IN A.S NO. 34/2012
OF THE ADDITIONAL DISTRICT COURT II,
MAVELIKKARA
ANNEXURE 7 TRUE COPY OF THE JUDGMENT DATED 12/6/2014 OF
THIS HON'BLE COURT IN FAO NO. 62/2014
ANNEXURE 8 TRUE COPY OF THE ORDER IN RP NO. 631/2014
DATED 28/8/2014
ANNEXURE 9 TRUE COPY OF THE JUDGMENT DATED 31/10/2015
IN A.S NO. 34/2012 OF THE ADDITIONAL
DISTRICT COURT II, MAVELIKKARA
