Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 7 (KER)

Smt. Elamma John v. Smt. Mercy

2001-01-04

A.S.ANAND

body2001
Judgment :- This petition is filed under Section 482 of the Code of Criminal Procedure by the accused in C.C. No. 217 of 1997 on the file of the Judicial First Class Magistrate's Court, Sulthan Bathery. 2. The petitioner is the accused in the above said case and she has received a summons to appear before the Judicial First Class Magistrate's Court, Sulthan Bathery on 27-12-1997. The first respondent herein is the complainant in the said case. The petitioner was having a total extent of 4 acres of immovable property. Out of the said property, she had sold 1 1/2 acres to three persons inclusive of the first respondent complainant. The balance 2 1/2 acres will be worth more than Rs. 4 lakhs. The petitioner/accused had availed a loan of Rs. 25,000/- from the State Bank of India, Kynatty Branch by, pledging her properties. Considering the value of the property, the loan amount was very negligible. At the time of execution of the documents itself, the petitioner had divulged the fact that there was a loan from the bank and all the three purchasers including the first respondent purchased the properties knowing fully well about the loan. At the time of execution of the sale deed itself, the petitioner had informed them that she will be responsible for the said loan and she will be discharging the liability. So far, the bank has not sent any notice to any of the purchasers including the first respondent. The first respondent with ulterior motive filed a complaint against the petitioner on 13-12-1996 before the Judicial First Class Magistrate's Court, Sulthan Bathery as C.C. No. 217 of 1997 under Section 420 of the Indian Penal Code. In the said complaint, it is stated that prior documents of the property of 70 cents purchased by the first respondent for an amount of Rs. 28,000/- was not handed over to her at the time of sale and on the date of sale, the property was mortgaged to the State Bank of India, Kainatty Branch by deposit of title deeds of the property. The petitioner had suppressed the said fact and that her intent was to cheat the complainant. The first respondent had sustained mental agony and loss. An earlier complaint filed before the Magistrate's Court which was sent for investigation to the Konichira Police was subsequently referred by the police. The petitioner had suppressed the said fact and that her intent was to cheat the complainant. The first respondent had sustained mental agony and loss. An earlier complaint filed before the Magistrate's Court which was sent for investigation to the Konichira Police was subsequently referred by the police. The refer notice was received by the first respondent on 10-12-1996. 3. It is submitted that prior to the filing of the present complaint, the first respondent had sent a registered lawyer notice. In the said notice, the first respondent had only demanded the petitioner to close the loan account and hand over the prior documents within 7 days of the receipt of the notice, failing which she will initiate appropriate legal action. The loan from the bank had no connection with the sale of the property to the first respondent. Further, the petitioner had closed the loan account on 8-10-1996, that is, prior to the notice. The prior documents also have been handed over to the first respondent. For the registered notice sent to the petitioner, she had sent a reply notice dated 17-10-1996 through her Advocate. The said notice was acknowledged by the Advocate (Smt. V. M. Cicily) of the first respondent. The allegation in the complaint as well as in the notice that she had deposited the original title deed in respect of the property in the bank is not correct. Along with the petition the petitioner has produced true photostat copy of the certificate issued by the Kainatty Branch of the State Bank of India dated 15-9-1997 which would show that Document No. 1995 / 1974 was the prior document which had not been pledged with the bank and availed any loan by depositing the title deed and the loan transaction with the bank was closed as early as on 8-10-1996. The present complaint has been filed by the first respondent due to personal vengeance and animosity. The first respondent had also filed complaints against the petitioner before the Taluk Sabha, D.E.O. and the District Collector. The petitioner is a School Teacher and in order to harass and humiliate her the present petition is filed without any bona fides and with ulterior motive. The first respondent had also filed complaints against the petitioner before the Taluk Sabha, D.E.O. and the District Collector. The petitioner is a School Teacher and in order to harass and humiliate her the present petition is filed without any bona fides and with ulterior motive. As per the allegations raised in the complaint, it can be seen that no criminal offence is committed by the petitioner and that transaction between the petitioner and the first respondent if at all is of a civil nature. It is an abuse of the process of law. Hence it is prayed that prosecution initiated against the petitioner in C.C. No. 217 of 1997 pending before the Judicial Magistrate of First Class, Sulthan Bathery be quashed. 4. Heard learned counsel for the petitioner and the respondents. The point for consideration is whether there is any reason to quash the proceedings initiated against the petitioner in C.C. No. 217 of 1997. When a prosecution at the initial stage is asked to be quashed under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C."), the test to be applied by the Court is as to whether the uncontroverted allegations as made prime facie establish the offence. The Court has also to take into consideration whether it is expedient and in the interest of justice to permit the prosecution to continue. The Court cannot be utilised for any oblique purpose. The specific case of the petitioner is that the first respondent has filed the complaint against the petitioner with ulterior motives. The petitioner is a school teacher, and a false complaint has been filed so as to harass her and humiliate her. 5. The allegation in the complaint is that the petitioner cheated the first respondent. As per the first respondents, the petitioner had sold 70 cents of property to her for a consideration of Rs. 28,000/-. At the time of execution of the document, the first respondent was made to believe that there is no liability in respect of the property and the original document was being kept in the house of the petitioner. But later on it was revealed that the original document was pledged in the State Bank of India, Kynatti Branch and obtained a loan even prior to the execution of the sale deed and thereby the petitioner cheated her. But later on it was revealed that the original document was pledged in the State Bank of India, Kynatti Branch and obtained a loan even prior to the execution of the sale deed and thereby the petitioner cheated her. The dispute between the parties is related to the purchase of the property by the first respondent. The prior complaint filed before Court by the first respondent was sent for investigation and after investigation, it was referred. Thereafter, the present complaint has been filed. Even assuming that the allegation in the complaint is substantially correct, it is purely of a civil nature. There is indemnity clause in the document itself. So even if the petitioner had obtained any loan and if any loss is sustained to her, it can be compensated in terms of money. Annexure-A is the photostate copy of the protest complaint dated 13-12-1996. Before filing the said complaint, Annexure-B lawyer notice dated 10-10-1996 was issued to the petitioner on asking the petitioner to handover the prior document and close the loan transaction. Annexure-C is the reply notice sent on 17-10-1996. In the reply notice it is specifically stated that before sale, the petitioner had disclosed about the loan transaction and knowing fully well she purchased the property. It is further stated in the reply notice that the loan transaction has been cleared and the original document was entrusted with the first respondent on 8-10-1996. After receiving the original document, Annexure-B, notice was issued to harass her and humiliate her. After accepting the reply notice, the protest complaint has been filed by her. The issuance of lawyer notice and reply is not mentioned in the complaint. The respondent has no case that the Bank has initiated any proceedings against the property. Annexure-E is the certificate issued from the State Bank of India. It shows that the loan transaction of V. L. Elamma has been closed and the assignment deed No. 1995/1974 dated 8-5-1974 of S.R.O., Sulthan Bathery has been returned. Long after the receipt of the reply notice, the present complaint is filed before Court. Even if the allegations in the complaint is accepted as true, it will not prima facie establish the offence as alleged. It is only an abuse of the process of the Court. 6. So in my view, it is not a fit case where any process can be issued against the petitioner. Even if the allegations in the complaint is accepted as true, it will not prima facie establish the offence as alleged. It is only an abuse of the process of the Court. 6. So in my view, it is not a fit case where any process can be issued against the petitioner. On the well settled principles of law, it is a suitable case where the criminal proceedings has to be quashed. In the result, the petition is allowed and the prosecution initiated against the petitioner in C.C. No. 217 of 1997 pending before the Judicial First Class Magistrate's Court, Sulthan Batheri is quashed. Petition allowed.