Kerala High Court
Mini vs Dr. Anand M. Kurian on 27 February, 2025
Author: V.G.Arun
Bench: V.G.Arun
2025:KER:18095
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946
CRL.MC NO. 2854 OF 2023
CRIME NO.611/2019 OF Medical College Police Station,
Thiruvananthapuram
AGAINST THE ORDER DATED IN RC NO.120 OF 2021 OF ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM
PETITIONERS/ACCCUSED 1 TO 4:
1 MINI
AGED 57 YEARS
D/O. INDIRA ITTY YAMINI, HOUSE NO.A-3 PILLA VEEDU
NAGAR, THIRUVANANTHAPURAM., PIN - 695004
2 INDIRA CHANDRAN
AGED 78 YEARS
W/O. CHANDRASEKHARA PILLAI,INDU' T.C. 16/166(1) NEAR
SNDP HALL, JAGATHY, THIRUVANANTHAPURAM., PIN - 695014
3 BINDU CHANDRAN
AGED 58 YEARS
D/O. CHANDRASEKHARA PILLAI, INDU' T.C. 16/166(1) NEAR
SNDP HALL, JAGATHY, THIRUVANANTHAPURAM:695 014., PIN -
695014
4 BIJU CHANDRAN
AGED 57 YEARS
S/O. CHANDRASEKHARA PILLAI;INDU' T.C. 16/166(1) NEAR
SNDP HALL, JAGATHY, THIRUVANANTHAPURAM, PIN - 695014
BY ADVS.
PIRAPPANCODE V.S.SUDHIR
AKASH S.
GIRISH KUMAR M S
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Crl.M.C.No.2854 of 2023
2
V.S.VARALEKSHMI
DEVIKA JAYARAJ
RESPONDENTS/COMPLAINANT & STATE:
1 DR. ANAND M. KURIAN
FLAT NO.4-C, 4TH FLOOR, CORDIAL EMERALD, PATTOM P.O.,
KESAVADASAPURAM, THIRUVANANTHAPURAM., PIN - 695004
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
BY ADVS.
ADV. P.G. JAYASHANKAR PGJ
P.K.RESHMA (KALARICKAL)(K/875/2014)
S.RAJEEV (K/001711/2019)(K/001711/2019)
SAJANA V.H(K/1174/2021)
VINITHA S.T.(K/704/2021)
RUBY K. ROY(K/001015/2017)
SHAIJU GEORGE(K/001271/2021)
SMT. PUSHPALATHA. M.K, SR.PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
27.02.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Crl.M.C.No.2854 of 2023
3
ORDER
Dated this the 27th day of February, 2025
The challenge in this Crl.M.C. is against
Annexure XXV order of the Additional Chief Judicial
Magistrate Court, Thiruvananthapuram. By the
impugned order, the learned Magistrate took
cognizance of the offence punishable under Section
406 of IPC, based on a protest complaint filed by the
1st respondent. The essential facts are as under;
2. Petitioners were the owners of 39.954 cents
of land comprised in Sy.Nos.1428 and 1428/2-9-1 of
Pattom Village. M/s.Cordial Company (hereinafter
described as 'the builder'), an enterprise engaged in
the construction of residential flats, approached the
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petitioners with a proposal to construct an apartment
building in their property. The petitioners found the
proposal suitable and executed necessary documents
authorizing the company to construct the building.
Thereafter, the builder entered into agreements with
the allottees, including the 1st respondent. Later, sale
deed was also executed in favour of the 1 st respondent
on 14.06.2012, with respect to an extent of 36
sq.meters and undivided share in the 39.954 cents was
transferred to the 1st respondent.
3. The 1st respondent later filed a complaint
alleging that, from Village Office he got information
that, out of the 39.954 Cents, 1.80 Ares and 1.45 Ares
had been acquired by the State Government for
widening the National Highway from Kesavadasapuram
to Ulloor and petitioners had received compensation of
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Rs.58,60,021/-. According to the 1 st respondent, by
clandestinely receiving compensation for the land
already sold to the 1st respondent and other apartment
owners, petitioners had committed the offence of
cheating, breach of trust and misappropriation. The 1 st
respondent's complaint led to the registration of Crime
No.611 of 2019 at the Medical College Police Station,
Thiruvananthapuram for offences punishable under
Sections 405, 420, 465, 468 and 471 r/w Section 120-
B of IPC, 1860. Even though, the police filed refer
report after investigation, 1st respondent filed a protest
complaint and the court took cognizance of the offence
under Section 406 of IPC.
4. According to the learned Counsel for the
petitioners, the court below grossly erred in taking
cognizance of the offence under Section 406 of IPC. It
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is submitted that the offence will be attracted only if
the property entrusted with the accused is dishonestly
misappropriated or converted to his own use by the
accused. It is the submission of the learned Counsel
that the prosecution materials itself shows that the
entire extent of 39.954 cents was not sold and only 21
cents was entrusted to the builder. Hence, petitioners
had every right to receive the compensation paid
towards acquisition of land from the balance property
in the possession and ownership of the petitioners.
Being convinced about this fact, after investigation the
police had filed refer report. The court below, without
considering the relevant documents or the reasons
stated in the refer report, took cognizance of the
offence under Section 406 IPC, in spite of entrustment
of property, which is fundamental for attracting Section
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406 IPC being absent. Reliance is placed on the
decision of the Apex Court in Prof.R.K.Vijayasarathy
and Another v. Sudha Seetharaman and Another
[(2019) 16 SCC 739] to high light the ingredients
necessary for constituting the offence under Section
406 of IPC.
5. Learned Counsel for the 1st respondent
submitted that the factual submissions made on behalf
of the petitioners is patently false. Having sold the
property, petitioners cannot claim exclusive ownership
over any portion of the 39.954 cents, they being only
co-owners of the undivided property along with the
other apartment owners. The petitioners, through the
builder, has transferred undivided share in the 39.954
cents of land to the 1st respondent as per Annexure
VIII deed of agreement and Annexure IX sale deed.
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By suppressing this crucial fact and producing
misleading documents, petitioners deceptively
obtained compensation of ₹58,60,021/- from the State
Government for acquisition of land from the aforesaid
39.954 cents. Therefore, the learned Magistrate
committed no mistake in taking cognizance of the
offence under Section 406 IPC against the petitioners
and the other accused.
6. Indisputably, in order to consider the
contention and decide the case, this Court will have to
analyse and appreciate the evidence. As held by the
Apex Court in State of Bihar and Another v.
K.J.D.Singh [1994 SCC (Crl) 63] and plethora of other
judgments, it is not permissible to quash proceedings
by appreciating evidence at the stage when the trial
has not even commenced. The inherent power of the
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High Court has to be exercised sparingly and
judiciously, and for the purposes mentioned in Section
482 of Cr.P.C. The contentions put forth by the learned
counsel for the petitioners, though appreciable, are not
sufficient to invoke the inherent power vested with this
Court.
For the aforementioned reason, the Crl.M.C
is dismissed.
Sd/-
V.G.ARUN
JUDGE
SSK/27/02
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PETITIONER ANNEXURES
Annexure I TRUE COPY OF THE COMPLAINT NO.1082/2019
FILED BY THE 1ST RESPONDENT BEFORE THE
ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S
COURT, THIRUVANANTHAPURAM
Annexure II TRUE COPY OF THE FIRST INFORMATION REPORT
IN CRIME NO.611/2019, REGISTERED BY THE 2ND
RESPONDENT AGAINST THE PETITIONERS FOR
OFFENCES SECTIONS 405, 420, 465, 468, 471 &
120B
Annexure III TRUE COPY OF THE AGREEMENT DATED 16.10.2006
EXECUTED BY THE PETITIONERS 2 TO 4 IN
FAVOUR OF THE PARTNERS OF A PARTNERSHIP
FIRM CALLED CORDIAL COMPANY
Annexure IV TRUE COPY OF THE GENERAL POWER OF ATTORNEY
DATED 18.10.2006 EXECUTED BY THE
PETITIONERS 2 TO 4 IN FAVOUR OF THE BUILDER
Annexure V TRUE COPY OF THE AGREEMENT DATED 02.11.2006
EXECUTED BY THE 1ST PETITIONER WITH THE
BUILDER
Annexure VI TRUE COPY OF THE POWER OF ATTORNEY EXECUTED
ON 02.11.2006, BY THE MOTHER OF THE 1ST
PETITIONER IN FAVOUR OF THE BUILDER
Annexure VII TRUE COPY OF THE POWER OF ATTORNEY DATED
18.09.2010 EXECUTED BY THE 1ST PETITIONER
Annexure VIII TRUE COPY OF THE AGREEMENT FOR SALE DATED
20.09.2007 EXECUTED BY THE BUILDER, IN
FAVOUR OF THE 1ST RESPONDENT
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Annexure IX TRUE COPY OF THE SALE DEED NO.2209/12 DATED
14.06.2012 EXECUTED BY THE BUILDERS IN
FAVOUR OF THE 1ST RESPONDENT
Annexure X TRUE COPY OF THE STATEMENT CONTAINING THE
DETAILS OF THE NAMES OF THE CUSTOMERS,
THEIR APARTMENT NO. INCLUDING WHETHER
RESIDENTIAL OR COMMERCIAL, ADDRESS, EXTENT
OF LAND (UNDIVIDED SHARE), SALE DEED NO AND
TC NO. OF CORDIAL EMERALD APARTMENTS
Annexure XI TRUE COPY OF THE RELEVANT EXTRACT OF THE
THANDAPER ACCOUNT MAINTAINED IN THE VILLAGE
OFFICE, PATTOM
Annexure XII TRUE COPY OF THE LETTER NO.LAC 9/12 DATED
07.12.2012
Annexure XII(a) TRUE COPY OF THE LETTER NO.LAC 7/12 DATED
07.12.2012
Annexure XIII TRUE COPY OF THE NOTICE NO.LA4 302/06 DATED
03.10.2012 ISSUED TO THE PETITIONERS 2 TO 4
Annexure XIV TRUE COPY OF THE NOTICE NO.LAC 9/12 DATED
29.11.2013 ISSUED TO THE PETITIONERS 2 TO 4
Annexure XV TRUE COPY OF THE NOTICE NO.LAC 7/12 DATED
29.11.2013 ISSUED TO THE 1ST PETITIONER
Annexure XVI TRUE COPY OF THE NOTICE NO.LAC 9/2012 DATED
31.12.2013
Annexure XVI(a) TRUE COPY OF THE NOTICE NO.LAC 7/12 DATED
31.12.2013 OF THE LAND ACQUISITION OFFICER
Annexure XVII TRUE COPY OF THE POSSESSION AND NON
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ATTACHMENT CERTIFICATE NO.272/2014 DATED
06.02.2014 ISSUED BY THE VILLAGE OFFICER,
PATTOM
Annexure XVIII TRUE COPY OF THE 1ST PAGE OF THE TITLE DEED
OF THE PROPERTY OF THE 1ST PETITIONER,
CONTAINING THE ENDORSEMENT BY THE SPECIAL
TAHSILDAR, LA (NH) THAT AN EXTENT OF 1.80
ARES IN OLD SY.NO.1428/2-9-1, WERE ACQUIRED
FROM HER FOR WIDENING OF THE ROAD FROM
KESAVADASAPURAM MOSQUE TO CHAITHANYA
HOSPITAL, AS PER LAC NO.7/2012
Annexure XIX TRUE COPY OF THE 1ST PAGE OF THE TITLE DEED
OF THE PROPERTY OF THE PETITIONERS 2 TO 4,
CONTAINING THE ENDORSEMENT BY THE SPECIAL
TAHSILDAR, LA (NH) THAT AN EXTENT OF OF
1.45 ARES IN SY.NO.1428, WERE ACQUIRED FROM
THEM FOR WIDENING OF THE ROAD FROM
KESAVADASAPURAM MOSQUE TO CHAITHANYA
HOSPITAL, AS PER LAC NO. 9/2012
Annexure XX TRUE COPY OF THE NOTICE DATED 13.06.2018
ISSUED ON BEHALF OF THE 1ST RESPONDENT, TO
THE PETITIONERS,
Annexure XXI TRUE COPY OF THE ORDER DATED 12.01.2021 OF
THIS HON'BLE COURT IN IN CRL.M.C.4936/2020
Annexure XXII TRUE COPY OF THE THE REFER CHARGE DATED
18.12.2020 IN CRIME NO.611/2019 OF MEDICAL
COLLEGE POLICE STATION
Annexure XXIII TRUE COPY OF THE SWORN STATEMENT OF THE 1ST
RESPONDENT IN R.C.120/2021 OF THE
ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S
COURT, THIRUVANANTHAPURAM
Annexure XXIV TRUE COPY OF THE SWORN STATEMENT OF
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SRI.GEORGE VARGHESE IN R.C.120/2021
Annexure XXV THE CERTIFIED COPY OF THE ORDER DATED
30.12.2022 IN R.C.120/2021 OF THE
ADDITIONAL CHIEF JUDICIAL MAGISTRATE,
THIRUVANANTHAPURAM
RESPONDENT EXHIBITS
Annexure R1(a) A true copy of the site plan provided to
the 1st respondent by the petitioners along
with the brochure of the apartment dated
nil
TRUE COPY
P.A. TO JUDGE
