Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 25th DAY OF JANUARY 2024 / 5TH MAGHA, 1945 CRL.REV.PET NO. 849 OF 2018 CRIME NO.1546/2010 OF ERNAKULAM SOUTH POLICE STATION, ERNAKULAM AGAINST THE ORDER DATED 19.05.2018 IN CMP No.105/17 IN CC 333/2012 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES),ERNAKULAM REVISION PETITIONERS/ACCUSED Nos.1 TO 8: 1 PRATHAPACHANDRAN, AGED 65 YEARS, S/o K.PADMANABHAN, GURUPREETHI (H), PONNURUNNI KARA, PONNURUNNI NURSING SCHOOL ROAD, POONITHURA VILLAGE, ERNAKULAM DISTRICT. 2 K.G SOMARAJAN, AGED 62 YEARS, S/o GANGADHARAN, RESIDING AT A 204 SANTHI APARTMENTS, LOUIS LANE, YUVAJANASAMAJAM ROAD, KADAVANTHARA, ERNAKULAM DISTRICT.
3 PAUL C. POULOSE, AGED 66 YEARS, S/o POULOSE, CHEMBAKASSERY(H), ST. MARTIN ROAD, PALARIVATTOM, POONITHURA VILLAGE, ERNAKULAM DISTRICT. 4 C.J VARGHESE, AGED 58 YEARS, S/o JOSEPH, NELLIMALA(H), ANANTHURUTHICHIRA ROAD, KOCHUKADAVANTHRA, ELAMKULAM VILLAGE, ERNAKULAM DISTRICT. 5 MATHEW M.A, AGED 64 YEARS, S/o ABRAHAM, MUDAKKAMOOTTIL, CHILAVANNOOR, SOUTH DESOM, ELAMKULAM VILLAGE, ERNAKULAM DISTRICT. 6 RAMACHANDRAN NAIR M.N, AGED 64 YEARS S/o NARAYANAN NAIR, RACHANA (H), CHITRA NAGAR, THRIPPUNITHURA, THEKKUMBHAGOM, ERNAKULAM DISTRICT
7 N. GANGADHARAN, AGED 67 YEARS, S/o NANAN NADAR, ROHINI NIVAS, PANAYARAKUNNAM DESOM, KOTTUKAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. Crl.R.P.No.849 of 2018 2 8 PRASANNA M, AGED 68 YEARS, W/o RAVEENDRAN, KOSAVATTATH(H), PULLICHIRA, THEKKUMKARA, MAYYANAD VILLAGE, KOLLAM DISTRICT. BY ADVS. ANIL S.RAJ RADHIKA RAJASEKHARAN P. V.N.ANIL KUMAR S.GOPAKUMAR T.M.BINITHA RESPONDENTS/COMPLAINANTS: 1 STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION, WHO IS REP. BY THE ASST. PUBLIC PROSECUTOR, ERNAKULAM. 2 A.M SASIDHARAN, AGED 71 YEARS, S/o MADHAVAN, SKPA 26/396M, HARIHAR NAGAR, KONTHURUTHY, THEVARA, ERNAKULAM DISTRICT - 682013. 3 C. P XAVIER, AGED 62 YEARS, S/o PYLEE, CHIRAYATH(H), CHERANALLOOR, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT - 682034.
ADDL.R4 K.N VIMALA KUMARA SHARMA, AGED 68 YEARS, S/o K. N. NARAYANAN UNNI, KARTHIKA, P.C CROSS ROAD, POONTHURUTHI, VYTTILA P.O, KOCHI ADDL.R5 P. K. KUNJU, AGED 68 YEARS, S/o P.M KURIAN, RESIDING AT PULIVELIL HOUSE, THOTTAMKADARA ROAD, KADAVANTHRA P.O, COCHIN - 682020 ADDL.R6 SALLY P. KUNJU, AGED 63 YEARS, W/o P.K KUNJU, RESIDING AT PULIVELIL HOUSE, THOTTAMKADARA JIROAD, KADAVANTHRA P.O, COCHIN - 682020 Crl.R.P.No.849 of 2018 3 ADDL.R7 T.V. VASUDEVAN, AGED 70 YEARS, LATE T.V NAMBOOTHIRI, SREESAILAM HOUSE, CHERANELOOR, KOCHI 682034 ADDL.R8 ANILA T, AGED 42 YEARS, D/o T.V. VASUDEVAN, VADASSERY ILLAM, VAIKOM PP.O., KOTTAYAM, 686141 (ADDL. R4 TO R8 IMPLEADED AS PER ORDER DATED 14.08.2023 IN CRL.M.A. 1/2023 IN CRL.R.P. 849/2018)
R1 BY PUBLIC PROSECUTOR SMT. NIMA JACOB R2 BY ADVS. SRI.C.S.AJITH PRAKASH SRI. K PRADEEPAN SRI.UNNI NAIR SRI. BIJITH S KHAN SRI. T K DEVARAJAN SRI. A T JOSE R3 BY ADV. SRI.VIPIN NARAYAN ADDL. R4 TO R8 BY ADVS. MANU GOVIND RAHUL SURENDRAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON 25.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.R.P.No.849 of 2018 4
ORDER
It is against the dismissal of an application for discharge under Annexure 3 order, the petitioners 8 in number, the accused arrayed in Annexure 1 final report and Annexure 2 supplementary report, came up.
2. It is submitted that it is pertaining to purchase
of certain immovable properties based on a resolution passed by the society. They are the members of Board of Directors. A resolution was passed early in the year 2008 permitting the members of Board of Directors to purchase properties for which CW21 offered 20 acres of property situated in Nadakavu Village. It was agreed to sell the property for the agreed sale consideration out of which an amount of Rs.56,000/- was agreed to be given separately to CW21 for the purpose of developing the road leading towards that property. The resolution was passed on 07.04.2008 and it was confirmed by the General Body on 15.04.2008. Subsequently, the property was purchased by paying the Crl.R.P.No.849 of 2018 5 agreed sale consideration, but they could not purchase the entire extent due to lack of sufficient funds. Only an extent of 14.53 acres was purchased. It is thereafter the dispute arises presumably on the ground that what is purchased is a marshy land, not suitable for development. Admittedly, it is not a paddy land. If that be so, there may not be any legal prohibition in developing the land. Even otherwise, no criminal liability can be attached to the abovesaid transaction either for the offence under Section 420 or 406 or 409 IPC, as there is no inducement either fraudulently or dishonestly to deliver any property or to induce the other person to do or not to do any act so as to bring the matter within the sweep of the definition 'cheating' as defined under Section 415 IPC. Further, there is no breach of any trust as they have acted in accordance with the resolution passed by the Governing Body which was confirmed by the General Body. Even if there is failure or malafides in purchasing or in the transaction that may not be a sufficient ground to bring home the guilt of accused for the offence under Sections 420, 406 and 409 IPC. It may be a case of breach of contract or an obligation arising Crl.R.P.No.849 of 2018 6 out of it. Necessarily, even if Annexure 1 final report and Annexure 2 supplementary report are proved as such, it will not lead to conviction of the accused for any of the offences as alleged, viz Section 420, 406 and 409 IPC. Necessarily, the trial court ought to have granted discharge of all these accused. What is involved is only a civil liability or at the most an obligation arising out of an agreement or understanding and its breach, may not be sufficient to bring home any of the offences. Hence, Annexure 3 order will stand set aside and the application submitted for discharge will stand allowed. The accused are discharged against all offences. Bail bond, if any, executed will stand cancelled. The Criminal Revision Petition will stand allowed accordingly. Sd/- P.SOMARAJAN JUDGE DMR/- Crl.R.P.No.849 of 2018 7 APPENDIX OF CRL.REV.PET 849/2018 PETITIONERS' ANNEXURES ANNEXURE 1 TRUE COPY O THE CHARGE SHEET SUBMITTED IN
C.C.No.333/2012 ON THE FILE OF THE ADDL. CHIEF JUDICIAL MAGISTRATE COURT (ECONOMIC OFFENCES), ERNAKULAM. ANNEXURE 2 TRUE COPY OF THE SUPPLEMENTARY CHARGE SHEET SUBMITTED IN C.C No.333/2012 ON THE FILE OF THE ADDL. CHIEF JUDICIAL MAGISTRATE COURT, (ECONOMIC OFFENCES), ERNAKULAM. ANNEXURE 3 TRUE COPY OF THE ORDER PASSED IN CMP No.105/2017 IN CC No.333/2012 ON THE FILE OF THE ADDL. CHIEF JUDICIAL MAGISTRATE COURT, (ECONOMIC OFFENCES), ERNAKULAM
ANNEXURE 4 TRUE COPY OF THE MINUTES OF THE GENERAL BODY MEETING OF THE SOCIETY HELD ON 15.04.2008. Annexure P5(a) TRUE COPY OF THE RELEVANT PAGE OF PETITIONER'S VISA Annexure P5(b) TRUE COPY OF AMERICAN VISA OF THE PETITIONER Annexure P5(c) TRUE COPY OF CANADIAN VISA OF THE PETITIONER Annexure P5(d) TRUE COPY OF THE PASSPORT APPLICATION FORM OF THE PETITIONER Annexure P5(e) TRUE COPY OF ONLINE APPOINTMENT RECEIPT OF PETITIONER Annexure P5(f) TRUE COPY OF THE RELEVANT PAGE OF THE RENEWED PASSPORT OF THE PETITIONER RESPONDENTS' ANNEXURES ANNEXURE R2(a) A TRUE COPY OF THE AGREEMENT DATED 07.04.2008. Crl.R.P.No.849 of 2018 8 ANNEXURE R2(b) A TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 07.04.2008 ANNEXURE R2(c) A TRUE COPY OF THE RECEIPT DATED 08.04.2008 ISSUED BY THE SOCIETY ANNEXURE R2(d) A TRUE COPY OF THE RECEIPT DATED 08.05.2008 ISSUED BY THE SOCIETY ANNEXURE R2(e) A TRUE COPY OF THE NOTICE PUBLISHED BY THE SOCIETY DATED 31.03.2008. ANNEXURE R2(f) A TRUE COPY OF THE REPORT FILED BY THE RETIRED CHIEF ENGINEER, IRRIGATION DEPARTMENT, UP, Mr.M.P.GEORGE, DATED 11.06.2012. ANNEXURE R2(g) A TRUE COPY OF THE ORDER IN BAIL APPLICATION No.7038/2010 DATED 20.01.2011. ANNEXURE R2(h) A TRUE COPY OF THE ARC PETITION No.76/2014 FILED BY THE PETITIONERS BEFORE THE HON'BLE ARBITRATION COURT THIRUVANANTHAPURAM DATED 14.10.2014. ANNEXURE R2(i) A TRUE COPY OF THE REPORT PREPARED BY THE SENIOR INSPECTOR OF THE CO-OPERATIVE DEPARTMENT DATED 30.06.2014 IN SECTION 65 INQUIRY. // TRUE COPY // P.A.TO JUDGE