Prince .J.Vellukkunnel vs State Of Kerala
2024 Latest Caselaw 26102 Ker

Kerala High Court

Prince .J.Vellukkunnel vs State Of Kerala on 3 September, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

   CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020
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                                              2024:KER:66703

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946

                    CRL.MC NO. 1291 OF 2017

       CRIME NO.1774/2013 OF ERNAKULAM SOUTH POLICE

                       STATION, ERNAKULAM

     AGAINST THE ORDER/JUDGMENT DATED IN CC NO.415 OF

       2015 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE

                        (E&O),ERNAKULAM

   PETITIONERS/ACCUSED 1 AND 3:

       1     PRINCE .J.VELLUKKUNNEL
             AGED 64 YEARS, S/O. JOSEPH, RESIDING AT
             VELLUKKUNNEL HOUSE, NO. 17-D, EXPRESS
             ESTATE,KALOOR, ERNAKULAM, COCHIN - 682017.

       2     SANY FRANCIS
             S/O. LATE K.C.FRANCIS, AGED 56 YEARS,
             RESIDING AT HOUSE NO. 50/2005-C, R M V
             ROAD, ELAMAKAKKARA, COCHIN- 682 026,
             ERNAKULAM.

             BY ADV SRI.PEEYUS A.KOTTAM
   RESPONDENTS:
       1   STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH
           COURT OF KERALA, ERNAKULAM, COCHIN-682018.
           (SUB INSPECTOR OF POLICE, ERNAKULAM TOWN
           SOUTH POLICE STATION- INVESTIGATING
           OFFICER IN CRIME NO. 1774/2013.
 CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020
                              2




                                          2024:KER:66703

    2      SAJEEV THOMAS
           S/O. V P JOHN, AGED 51 YEARS, RESIDING AT
           KAYIPURATH HOUSE, KAKKANGARA,
           THANNEERMUKKAM, ALAPPUZHA DISTRICT,
           PIN CODE - 682 587.



BY ADV.:

           SRI. RENJITH T.R SR PP

        THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 03.09.2024, ALONG WITH Crl.MC.5773/2020,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
    CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020
                                 3




                                              2024:KER:66703

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946

                    CRL.MC NO. 5773 OF 2020

       CRIME NO.1774/2013 OF ERNAKULAM SOUTH POLICE

                       STATION, ERNAKULAM

    AGAINST THE ORDER/JUDGMENT DATED IN CC NO.415 OF

   2015 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),

                            ERNAKULAM

   PETITIONER/ACCUSED - 2:

             ROY J VAYALAT
             AGED 49 YEARS, S/O LATE V T JOSEPH,
             VAYALAT NEST, EDAKOCHI P O, ERNAKULAM,
             KOCHI-682 036.


             BY ADVS.
             SAIBY JOSE KIDANGOOR
             SRI.BENNY ANTONY PAREL
             SMT.S.SIBHA
             KUM.PARVATHY VIJAYAN
             SHRI.ANOOP SEBASTIAN
             SMT.DEEPA VALENTINE LESLIE
   RESPONDENTS/STATE & DEFACTO COMPLAINANT:

       1     STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKUKLAM,
             COCHIN-682 018.
 CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020
                              4




                                          2024:KER:66703

    2      THOMAS SAJEEV ALIAS SAJEEV THOMAS
           S/O V P JOHN, RESIDING AT KAYIPURATH
           HOUSE, KAKKANGARA, THANNEERMUKKAM,
           ALAPPUZHA DISTRICT, PIN-682 587.

    3      THE SUB INSPECTOR OF POLICE
           ERNAKULAM TOWN SOUTH POLICE STATION,
           ERNAKULAM-682 015.



        THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 03.09.2024, ALONG WITH Crl.MC.1291/2017,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020
                              5




                                                2024:KER:66703




                 P.V.KUNHIKRISHNAN, J.
    ------------------------------------------------------------
    Crl.M.C. Nos.1291 of 2017 and 5773 of 2020
   -------------------------------------------------------------
      Dated this the 03rd day of September, 2024



                        ORDER

These Criminal Miscellaneous Cases are

connected and therefore, I am disposing of these

two cases by a common order.

2. These Criminal Miscellaneous Cases are

filed to quash the proceedings in CC No.415/2015

on the file of Additional Chief Judicial Magistrate

(Economic Offences) Court, Ernakulam. These

cases are originated from Annexure-A2 final report.

The above cases are charge sheeted alleging

offences punishable under Sections 120B, 420 r/w

34 of IPC.

3. Heard the learned counsel for the CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

2024:KER:66703

petitioners in these cases in detail. The notice

issued to the defacto complainant / 2 nd respondent

is returned on several occasions stating that he is

out of country.

4. This Court perused the final report. It

seems that the allegations appears to be civil in

nature. I am of the considered opinion that the

petitioners can be allowed to file a discharge

petition in the peculiar facts and circumstances of

the case and there can be a direction to the trial

court to consider the same without insisting the

presence of the petitioners. All the contentions

raised by the petitioners in these Criminal

Miscellaneous Cases can be raised by the

petitioners before the trial court at the appropriate

stage.

Therefore, these Criminal Miscellaneous cases

are disposed of with the following directions:

CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

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1. The petitioners are free to file a

discharge petition before the

jurisdictional court within thirty

days from the date of receipt of a

stamped certified copy of this

order, if charge is not framed.

2. Once such a discharge petition is

received, the jurisdictional court

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.

3. If a discharge petition is filed as

directed above, the presence of the

petitioners shall not be insisted, till CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

2024:KER:66703

final orders are passed in the

discharge petition.

4. All the contentions raised by the

petitioners in this criminal

miscellaneous case are left open

and the petitioners are free to

agitate the same in the discharge

petition.

Sd/-

P.V.KUNHIKRISHNAN JUDGE nvj CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

2024:KER:66703

PETITIONER ANNEXURES

ANNEXURE-A1 THE TRUE COPY OF THE FIRST INFORMATION REPORT DATED 07.12.2013 IN CRIME NO.1774/2013 OF ERNAKULAM TOWN SOUTH POLICE STATION.

ANNEXURE-A2 THE TRUE COPY OF THE FINAL REPORT DATED 25.10.2015 OF ERNAKULAM TOWN SOUTH POLICE STATION.

ANNEXURE-A3 THE TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN 1ST AND 2ND ACCUSED AND 2ND RESPONDENT HEREIN DATED 28/09/2006.

ANNEXURE-A4 THE TRUE COPY OF THE BUILDING PERMIT BEARING NO.A-1(2) 316/2005/2006 DATED 12.09.2005 ISSUED BY MARADU PANCHAYATH.

ANNEXURE-A5 THE TRUE COPY OF THE PROCEEDINGS NO.15497/RBI/2007/LSGD OF THE PRINCIPAL SECRETARY LSGD ISSUED TO SECRETARY MARADU GRAMA PANCHAYATH DATED 18.05.2007.

ANNEXURE-A6 THE TRUE COPY OF THE PROCEEDINGS NO.A1(2)316/05-06 OF THE MUNICIPAL SECRETARY REJECTING THE APPLICATION FOR NUMBERING THE BUILDING AND ISSUANCE OF OCCUPANCY CERTIFICATE DATED 27.06.2012.

ANNEXURE-A7 THE TRUE COPY OF THE INTERIM ORDER DATED 06.07.2012 OF THIS HON'BLE COURT IN WPC NO.23276/2007-(U) CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

2024:KER:66703

ANNEXURE-A8 THE TRUE COPY OF THE JUDGMENT DATED 20.11.2012 OF THIS HONOURABLE COURT IN WPC NO.23276/2007.

ANNEXURE-A9 THE TUE COPY OF THE JUDGMENT DATED 02.06.2015 OF THIS HONOURABLE COURT IN WA NO.150/2013.

ANNEXURE-A10 THE TUE COPY OF THE SALE DEED DATED 28.06.2006 EXECUTED BY M/s VAYALAT ESTATES PVT LTD IN FAVOR OF THE 2ND RESPONDENT DATED 28.06.2006.

ANNEXURE-A11 THE TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY OF MARADU MUNICIPALITY DATED 11.07.2012 NO.RI/7366/12 NUMBERING THE BUILDING IN THE NAME OF THE PROPERTY OWENR, M/s VAYALAT ESTATES PVT LTD.

ANNEXURE-A12 THE TRUE COPY OF THE OCCUPANCY CERTIFICATE FOR THE BUILDING ISSUED BY THE SECRETARY, MARADU MUNICIPALITY DATED 25.11.2015 IN THE NAME OF VAYALAT ESTATES PVT LTD.

ANNEXURE-A13 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE MARADU MUNICIPALITY TO THE EFFECT THAT SAJEEV THOMAS AND OMANA ARE PAYING THE BUILDING TAX FOR THE FLAT BEARING NO.XII- 4Z.

CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

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ANNEXURE-A14 THE TRUE COPY OF THE LETTER DATED 13.02.2017 ISSUED BY THE PRESIDENT OF GRAND MEADOWS FLAT OWNERS ASSOCIATION TO THE EFFECT THAT THE 2ND RESPONDENT IS IN POSSESSION OF THE FLAT NO,(6D).

ANNEXURE-A15        THE TRUE COPY OF BASIC TAX RECEIPT
                    DATED    31.12.2016     PAID    BY
                    RESPONDENT      NO.2/      DEFACTO

COMPLAINANT SAJEEV THOMAS AND OMANA JOSEPH TOWARDS THE UNDIVIDED SHARE OF LAND FOR THE YEAR 2016-17 ISSUED BY THE VILLAGE OFFICER, MARADU VILLAGE.

ANNEXURE-A16 THE TRUE COPY OF THE LETTER DATED 09.01.2017 SHOWING THE TRANSFER OF OWNERSHIP IN NAME OF SAJEEV THOMAS AND OMANA JOSEPH ISSUED BY THE SECRETARY, MARADU MUNICIPALITY.

ANNEXURE-A17 THE TRUE COPY OF THE SUPPLEMENTARY AGREEMENT EXECUTED BETWEEN THE 2ND RESPONDENT/DFACTO COMPLAINANT AND 3RD ACCUSED IN CC 415/2015, SANY FRANCIS.

CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

2024:KER:66703

PETITIONER ANNEXURES

ANNEXURE A1 THE CERTIFIED COPY OF THE FIRST INFORMATION REPORT DATED 07.12.2013 IN CRIME NO.1774/2013 OF ERNAKULAM TOWN SOUTH POLICE STATION.

ANNEXURE A2 THE CERTIFIED COPY OF THE FINAL REPORT DATED 25.10.2015 OF ERNAKULAM TOWN SOUTH POLICE STATION.

ANNEXURE A3 THE TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN 1ST AND 3RD ACCUSED AND 2ND RESPONDENT HEREIN DATED 28.09.2006.

ANNEXURE A4 TRUE COPY OF THE BUILDING PERMIT BEARING NO.A-1(2)316/2005/2006 DATED 12.09.2005 ISSUED BY MARADU PANCHAYATH.

ANNEXURE A5 THE TRUE COPY OF THE PROCEEDINGS NO.15497/RBI/2007/LSGD OF THE PRINCIPAL SECRETARY LSGD ISSUED TO SECRETARY MARADU GRAMA PANCHAYATH DATED 18.05.2007.

ANNEXURE A6 THE TRUE COPY OF THE PROCEEDINGS NO.A1(2)316/05-06 OF THE MUNICIPAL SECRETARY REJECTING THE APPLICATION FOR NUMBERING THE BUILDING AND ISSUANCE OF OCCUPANCY CERTIFICATE DATED 27.06.2012. CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

2024:KER:66703

ANNEXURE A7 TRUE COPY OF THE INTERIM ORDER DATED 06.07.2012 OF THIS HONOURABLE COURT IN WPC NO.23276/2007-(U)

ANNEXURE A8 THE TRUE COPY OF THE JUDGMENT DATED 20.11.2012 OF THIS HONOURABLE COURT IS IN WPC NO.23276/2007 - (U).

ANNEXURE A9 THE TRUE COPY OF THE COMMON JUDGMENT DATED 02.06.2015 OF THIS HONOURABLE COURT IN WA NO.150/2013 AND OTHER CONNECTED CASES.

ANNEXURE A10 THE TRUE COPY OF THE SALE DEED NO.3063/2006 DATED 28.06.2016 EXECUTED BY VAYALAT ESTATES PVT LTD IN FAVOUR OF 2ND RESPONDENT.

ANNEXURE A11 THE TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY OF MARADU MUNICIPALITY DATED 11.07.2012 NO.R1/7366/12 NUMBERING THE BUILDING IN THE NAME OF THE PROPERTY OWNER, M/S. VAYALAT PROPERTIES PVT. LTD.

ANNEXURE A12 TRUE COPY OF THE OCCUPANCY CERTIFICATE FOR THE BUILDING ISSUED BY THE SECRETARY, MARADU MUNICIPALITY DATED 25.11.2015 IN THE NAME OF M/S. VAYALAT ESTATES PVT LTD.

ANNEXURE A13 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE MARADU MUNICIPALITY TO THE EFFECT THAT SAJEEV THOMAS AND OMANA ARE PAYING THE BUILDING TAX FOR THE FLAT BEARING NO.XII - 4Z.

CRL.MC. NOS.1291 OF 2017 & 5773 OF 2020

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ANNEXURE A14 THE TRUE COPY OF THE LETTER DATED 13.02.2017 ISSUED BY THE PRESIDENT, GRAND MEADOWS APARTMENT OWNERS ASSOCIATION TO THE EFFECT THAT 2ND RESPONDENT IS IN POSSESSION OF THE FLAT NO.XII - 4Z (6D).

ANNEXURE A15 TRUE COPY OF THE BASIC TAX RECEIPT DATED 31.12.2016 PAID BY SAJEEV THOMAS AND OMANA JOSEPH TOWARDS THE UNDIVIDED SHARE OF LAND FOR THE YEAR 2016-17, ISSUED BY THE VILLAGE OFFICER, MARADU VILLAGE.

ANNEXURE A16 THE TRUE COPY OF THE LETTER DATED 09.01.2017 SHOWING THE TRANSFER OF OWNERSHIP IN THE NAME OF SAJEEV THOMAS AND OMANA JOSEPH ISSUED BY THE SECRETARY, MARADU MUNICIPALITY.

ANNEXURE A17 THE TRUE COPY OF THE SUPPLEMENTARY AGREEMENT EXECUTED BETWEEN THE 2ND RESPONDENT AND 2ND PETITIONER.

RESPONDENTS EXHIBITS :NIL

//TRUE COPY//

PA TO JUDGE