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2024 DIGILAW 1092 (KER)

Ramachandran Nair v. State Of Kerala

2024-09-02

A.BADHARUDEEN

body2024
ORDER : Accused Nos.1 and 2 in Crime No.1488 of 2020 of Kanjiramkulam Police Station, Thiruvananthapuram have filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure, 1973, seeking the following relief; “For these and other grounds to be urged at the time of hearing, it is most humbly prayed that this Honourable court may be pleased to quash all proceedings pursuant to Annexure-A FIR and Annexure-B Final Report in CC No: 2061 of 2021 of the Court of the Judicial First Class Magistrate-III, Neyyattinkara arising from Crime No: 1488 of 2020 of Kanjiramkulam Police Station, Thiruvananthapuram Rural.” 2. Heard the learned counsel for the petitioners, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant in detail. 3. In a nutshell, the case of the prosecution is that the accused persons, who are relatives and neighbours of the defacto complainant, with intention to cheat and defraud the defacto complainant, on the premise of arranging a loan for the treatment of the husband of the defacto complainant, brought them before the Sub Registrar Office, Venganoor for executing a bond for the purpose of availing loan, and then got executed a document stylled as sale deed in their favour and thereafter, paid Rs.3,50,000/- as loan amount and received back Rs.50,000/- towards the expense for arranging the loan amount. It is on this premise the prosecution alleges commission of offences punishable under Sections 406 and 420 of the Indian Penal Code (IPC for short hereinafter). 4. While canvasing quashment of the proceedings, the learned counsel for the petitioners would submit that after executing Annexure C (copy of the sale deed), an outright Sale Deed No.1012/2018 dated 05.07.2018, jointly by the defacto complainant and her husband by parting their right, interest and title over the property covered by the sale deed for a valid consideration, now the defacto-complainant took u-turn and raises allegation that the above sale deed was executed by misrepresenting that the same as a bond for the purpose of availing loan. According to the learned counsel for the petitioners, during 2019 there was an interference with regard to the possession of the property and accordingly, the 2nd petitioner filed O.S. No.781 of 2019 against Rajasekharan Nair, who is none other than the brother-in-law of the defacto complainant and an exparte decree was granted declaring the title and posession of the petitioners in respect of the property covered by the sale deed in question. According to the learned counsel for the petitioners, when dispute raised regarding a registered sale deed, the same carries with it a presumption that it was validly executed. He has placed decision of this Court reported in [ 2023 (6) KHC 257 ] Ushakrishnan T. v. Tharammel Peethambaran holding the said view. He also pointed out para 14 of the above judgment, where this Court referred decision of the Hon’ble Supreme Court as under: “The Apex Court in Bhagat Ram and another v. Suresh and others, AIR 2004 SC 436 held that while a document is registered and particulars as required by S.52 and S.58 of the Registration Act are endorsed on it as provided in S.60, a presumption by reference to S.114 (Illustration (e)) of the Evidence Act regarding its genuineness arises. The said principle was reiterated in Jamila Begum (dead) through LRs v. Shami Mohommed (dead) through LRs and another, AIR 2019 SC 72 , wherein it was held that a registered document carries with it a presumption that it was validly executed. In such a case, it is for the party challenging the genuineness of the transaction to show that the document is not valid in law. The onus of proof in that matter is on the person who challenges the transaction.” 5. According to the learned counsel for the petitioners, sale deed was executed after receiving consideration and as an afterthought, with a view to put the petitioners under the veil of criminal prosecution, the present crime was registered without any bonafides. Therefore the entire case would require quashment. He also submitted that no civil suit filed so far disputing the sale deed in any manner. 6. Therefore the entire case would require quashment. He also submitted that no civil suit filed so far disputing the sale deed in any manner. 6. The learned counsel for the defacto complainant read out the FIS at length to convince that the sale deed got executed by cheating and defrauding the defacto complainant, taking advantage of the fact that the husband of the defacto complainant was laid up due to illness and also taking note of the urgent need for money for the treatment of her husband. It is also submitted that the offence of breach of trust and cheating, as alleged by the prosecution, is made out prima facie and as such proof of the same is a matter of evidence. Thus relegating the parties to go for evidence. This Crl.M.C. is liable to be dismissed. 7. The learned Public Prosecutor also opposed the quashment sought for, pointing out prima facie materials to go for trial. 8. In view of the contra arguments, I have gone through the prosecution materials. It is discernible that the execution of Sale Deed No.1012/2018 on 05.07.2018 and subsequent allegation that the same was obtained by breach of trust and cheating on the premise of executing a bond to avail loan is the crux of the prosecution case. It is interesting to note that though sale deed was executed on 05.07.2018 and FIR was registered on 20.10.2020, after two and a half years of the execution of the sale deed and the case of the defacto complainant is that the execution of the sale deed was made known to her during 2020. It is submitted by the learned counsel for the defacto complainant that the defacto complainant and her husband have been in possession and enjoyment of the property as of now also. Per contra the petitioners claim title and possession over the same. Annexure D is the copy of the judgment in O.S.No.781 of 2019 and as per which 2nd petitioner’s title and possession over the property were declared, though the defacto complainant and her husband are not parties thereto and the said verdict has no binding effect on them. 9. Per contra the petitioners claim title and possession over the same. Annexure D is the copy of the judgment in O.S.No.781 of 2019 and as per which 2nd petitioner’s title and possession over the property were declared, though the defacto complainant and her husband are not parties thereto and the said verdict has no binding effect on them. 9. It is relevant to note that when execution of the sale deed is admitted by the executants, though on misconception by cheating, the proper remedy of the aggrieved is to file a civil suit to impeach the veracity of the sale deed by getting the same declared as null and void or to set aside the same for valid reasons. In the absence of challenge against the sale deed by filing a civil suit, being a registered document the sale deed would carry a presumption as to its proof and genuineness. Here, even though FIS lodged alleging commission of offences under Sections 406 and 420 of IPC, no challenge raised as against the sale deed by filing a civil suit, till this day. Admittedly, the defacto complainant would say that she received Rs.3,50,000/- and thereafter, returned Rs.50,000/-. That prima facie would show receipt of sale consideration, though sale consideration shown in the sale deed is only Rs.2,00,000/-. Holding so, it can only be held that challenge against the sale deed after admitting its execution though on the premise of a bond for availing loan, the same by itself is not a reason to put criminal law in motion without challenging the sale deed by filing civil case, as per law otherwise. Therefore, the prosecution case not made out prima facie disclosing offences under Sections 406 and 420 of IPC and the same would require quashment. In the result, the petition stands allowed. Accordingly, all further proceedings pursuant to Annexure-A FIR and Annexure- B Final Report now pending as CC No.2061 of 2021 on the files of the Judicial First Class Magistrate-III, Neyyattinkara arising from Crime No.1488 of 2020 of Kanjiramkulam Police Station, Thiruvananthapuram Rural, against the petitioners/accused stand set aside.