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2020 DIGILAW 1008 (KER)

Pradeep v. Leena Francis

2020-11-26

ALEXANDER THOMAS

body2020
ORDER : The prayers in the above Criminal Miscellaneous case filed under Sec 482 of the Cr.P.C. is as follows : “...to allow this Criminal Miscellaneous case, and quash Annexure-B final report and all further proceedings pursuant thereto in CC No. 1640 of 2015 pending on the files of the Court of the Judicial Magistrate of the First Class-II, Thrissur so as to secure the ends of justice.” 2. Heard Smt.Sruthy S Bhatt, learned counsel appearing for the petitioner, Smt.P.K.Priya, learned counsel appearing for 1st respondent and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R2-State of Kerala. 3. The petitioners herein have been arrayed as accused Nos. 1 and 2 among the two accused in the instant impugned Annexure-A FIR in Crime No.1514/2014 of Anthikkad Police Station, Thrissur district for offences punishable under Secs. 420 and 34 of the IPC on the basis of the First Information Statement given by the 1st respondent-lady defacto complainant on 25.9.2014 in respect of the alleged incident which happened on 28.11.2013. The police after investigation has filed the impugned Annexure-B final report/charge sheet in the said crime No.1514/2014 of Anthikkad Police Station which has now led to the pendency of calendar case, CC No.1640/2015 on the file of the Judicial First Class Magistrate Court-II, Thrissur in which the petitioners have been arrayed as accused Nos. 1 and 2 among the two accused therein for the abovesaid offences as per Secs.420 and 34 of the IPC. 4. The brief of the prosecution case is that the 1st respondent had executed an agreement for sale with the 1st petitioner (A1) for conveyance of her property and pursuant thereto, the 1st petitioner has executed and got registered Annexure-C sale deed in favour of the 1st petitioner which led to the conveyance of the subject property. That as per the terms and conditions of the said sale deed transaction, which resulted in Annexure-C registered sale deed, the total consideration of the immovable property was fixed at Rs. 5,00,000/- and that of the residential building constructed thereon was fixed at Rs.10,50,000/- and thus the total sale consideration was Rs.15,50,000/-. Further that, the 1st respondent was facing two civil suit proceedings as a defendant therein, one in O.S. No.4758/2013 on the file of the Munsiff Court, Thrissur wherein her total liability for clearing the attachment was Rs. 5,00,000/- and that of the residential building constructed thereon was fixed at Rs.10,50,000/- and thus the total sale consideration was Rs.15,50,000/-. Further that, the 1st respondent was facing two civil suit proceedings as a defendant therein, one in O.S. No.4758/2013 on the file of the Munsiff Court, Thrissur wherein her total liability for clearing the attachment was Rs. 7,02,334/- and another in O.S. No. 5758/2013 on the file of the same court wherein the 1st respondent’s liability to clear the attachment therein was Rs.8,08,534/- and thus the total liabilities to be cleared by the 1st respondent in those two civil suit proceedings, which resulted in attachment of the property, which is the subject matter of Annexure-C sale deed is Rs.15,10,868/- as then and that the terms and conditions of Annexure-C sale deed was that the said total liability of Rs.15,10,868/- was to be cleared by the 1st petitioner and that the balance consideration of Rs.39,132 (viz., 15,50,000 – 15,10,868 = Rs.39,132/- ) was paid in ready cash by the 1st petitioner to the 1st respondent. 5. On the basis of this conditions, the property has thus been conveyed by the 1st respondent to the 1st petitioner as per Ext.P3 sale deed. The complaint of the petitioner alleging the impugned criminal liability on the 1st petitioner is that later, the 1st petitioner could arrive at a settlement with the plaintiff in the abovesaid suit, whereby the latter agreed to settle the entire outstanding issues regarding the said liability in the attachment proceedings in relation to the property, which is the subject of Annexure-C sale deed at Rs. 10,00,000/- and the abovesaid civil court had also passed a decree that the liability to be cleared in the said proceedings is only Rs.10,00,000/-. 6. The case of the 1st petitioner is that since the 1st petitioner had cleared the liability which is originally at Rs.15,10,868/- to a reduced amount of Rs.10,00,000/- he has made an unlawful gain and that thereby, the 1st respondent has suffered an unlawful loss and that thereby, the 1st petitioner by doing the abovesaid action of entering into the settlement with the plaintiff in the abovesaid civil suit proceedings has cheated the 1st respondent by depriving the 1st respondent of an amount to the tune of Rs.5,10,868/- (viz. 15,10,868 – 10,00,000) etc. 15,10,868 – 10,00,000) etc. The allegation against the 2nd petitioner is that he was the broker at whose instance the property was sold by the 1st respondent in favour of the 1st petitioner as per Annexure-C registered sale deed and that therefore, he has also acted in consent and with common intention with the 1st petitioner so as to commit the abovesaid offence as per Sec. 420 of the IPC. 7. After hearing both sides, this Court is of the view that the contention raised by learned counsel appearing for the petitioners that no criminal culpability can be fastened as a result of the abovesaid allegations, has to be accepted. There is no dispute about the facts. The entire facts in this regard are clearly admitted by both sides. The core of the facts are evident from a mere reading of Annexure-C registered sale deed, which is not disputed by anybody, more particularly internal pages 7 and 8 of Annexure-C. The total sale consideration of the subject property covered by Annexure-C sale deed was fixed at Rs.15,50,000/-. Further aspect was that out of the said sale consideration of Rs.15,50,000/- the 1st petitioner will bear the liability of the 1st respondent in respect of the said attachment proceedings in the two pending civil suits, which was then at an amount of Rs. 15,10,868/- and the balance amount of Rs.39,132/- (Rs.15,50,000-15,10,868 = 39,132) has been paid in ready cash by the 1st petitioner to the 1st respondent. It so happened that the 1st petitioner instead of straight away clearing the said liability of Rs. 15,10,868/- to the plaintiff in the said suits had chosen to negotiate with the said plaintiff and the 1st petitioner and the plaintiff therein agreed that the entire outstanding liabilities will be cleared at a lower amount of Rs.10,00,000/- There is no dispute for the 1st respondent that as a matter of fact even the civil court had passed the decree holding that the entire liability to be cleared is only Rs.10,00,000/- and that the 1st petitioner has in fact cleared the said agreed reduced liability of Rs.10,00,000/- to the beneficiary of the attachment proceedings in the said suits. 8. 8. The said act on the part of the 1st petitioner in having negotiated and settled all the outstanding liabilities with the plaintiff in the said suit at a reduced amount cannot be the basis for the 1st respondent to contend or allege that the said act would result in any unlawful loss to the 1st respondent. The property has already been conveyed by the 1st respondent in favour of the 1st petitioner as per Annexure-C registered sale deed. Merely because the 1st petitioner has intelligently decided to negotiate and settle the liabilities with the plaintiff in the said suit at a reduced amount is no ground to allege that the said act would amount to unlawfully depriving the 1st respondent of any amount or that the 1st petitioner has thereby unlawfully enriched at the instance of the 1st respondent. 9. The negotiation and settlement of the liabilities at reduced level are all matters between the 1st petitioner and the plaintiff in the said suits and the civil court has also rendered a decree stating that the total liabilities at the said reduced amount. The entire liabilities as agreed between the 1st petitioner herein and the plaintiff in the said suit are been duly cleared by the 1st petitioner. It is really surprising that the 1st respondent would take up such a plea that the said act on the part of the 1st petitioner would involve any criminal culpability. It is all the more surprising as to how, the 2nd petitioner is only a broker in the transaction would be arrayed as an accused in such a case. 10. The upshot of the discussion is that the very initiation and continuance of the present impugned criminal proceedings is nothing, but a grave abuse of the process of this Court and as it would inevitably lead to the acquittal of the accused persons, which continuance would only result in unnecessary wastage of the precious time and resources of the judicial organs of the State as well as the prosecution machinery and investigating agency. 11. 11. In that view of the matter, it is ordered that the impugned Annexure-B final report/charge sheet filed in Crime No.1514/2014 of Anthikkad Police Station, Thrissur district, which has led to the pendency of calendar case, CC No.1640/2015 on the file of the Judicial First Class Magistrate Court-II, Thrissur as against the petitioners herein and all further proceedings emanating therefrom will stand quashed and set aside. 12. The petitioners will produce certified copies of this order before the investigating officer concerned as well as the Judicial First Class Magistrate Court-II, Thrissur, who is dealing with CC No.1614/2014 for necessary information. With these observation and directions, the above Criminal Miscellaneous case will stand disposed of.