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Davis, vs State of Kerala

DAVIS, vs State of Kerala

Type Court Judgment Court Kerala Decided Feb 28, 2022
~8 min read
https://sooperkanoon.com/case/1577281

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Citation
Court
Kerala High Court
Judge
Decided On
Case Number
Crl.MC/7103/2018

Parties & Advocates

Appellant / Petitioner

DAVIS,

Respondent

State of Kerala

Excerpt

.....that the dispute is civil in nature and hence, as crl.mc no.7103 of 2018 10 contended by the learned counsel for the petitioners, no culpability can be attributed against the petitioners herein. therefore, the only conclusion possible is that the entire prosecution based on annexure-a2 is a clear abuse of the process of court, and hence, this is a fit case in which the powers of this court under section 482 of the cr.pc can be invoked.in the result, the crl. m.c. is allowed, and all further proceedings in c.c.no.2339/2017 on the file of the judicial first class magistrate court, irinjalakuda pursuant to annexure-a2 final report in crime no.615/2017 of irinjalakuda police station are hereby quashed. sd/- ziyad rahman a.a. judge pkk crl.mc no.7103 of 2018 11 appendix of crl.mc 7103/2018 petitioner’s annexures: annexure-a1 certified copy of fir dated 1/4/2017 incrime no.615/2017 of irinjalakkuda police station along with the complaint lodged before superintendent of police, thrissur dated 28/3/2017.annexure-a2 certified copy of final report in crime no.615/2017 of irinjalakkuda police station annexure-a3 true copy of plaint in os no. 4569/2014 filed by 1st petitioner before munsiff court, thrissur annexure-a4 true copy of written statement dated annexure-a5 true copy of plaint in os no. 61/2015 filed by 2nd petitioner before sub court, thrissur annexure-a6 true copy of written statement filed in os no. 61/2015

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 28TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 CRL.MC NO. 7103 OF 2018 [TO QUASH PROCEEDINGS IN C.C.NO.2339/2017 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA ARISING OUT OF CRIME NO.615/2017 OF IRINJALAKUDA POLICE STATION] PETITIONERS/ACCUSED NOS.1 AND 2: 1 DAVIS,AGED 71 YEARS S/O ANTONY, KEETTIKKAL HOUSE, CHEMMANADA DESOM, KARALAM VILLAGE, THRISSUR DISTRICT. 2 JOSEPH,AGED 37 YEARS, S/O. CHAKKO, THAZHEKKADAN HOUSE, NELLIKKUNNU DESOM, THRISSUR DISTRICT. BY ADVS. C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER RESPONDENT/STATE AND DEFACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTING BY SUB INSPECTOR OF POLICE, IRINJALAKKUDA POLICE STATION, THRISSUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031 2 ARUNAN,S/O.UNNI, VALLATHUPARAMBIL HOUSE, KARUVANNUR DESOM, PORITHISSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT PIN -680001 [IS IMPLEADED AS ADDITIONAL RESPONDENT NO.2 AS PER

ORDER DATED 15.11.2018 IN CRL.MA NO.2/2018 IN CRL.MC.

NO. 7103 OF 2018] FOR R2 BY ADV. SANTHOSH P.POTHUVAL OTHER PRESENT: FOR R1 BY ADV. RANJIT GEORGE - PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 28.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.7103 of 2018 2

O R D E R

The petitioners are accused Nos.1 and 2 in C.C.No.2339/2017 on the file of the Judicial First Class Magistrate Court, Irinjalakkuda. The aforesaid case arises from Crime No.615/2017 of Irinjalakuda Police Station, which was registered on the basis of a complaint submitted by the 2nd respondent herein. The offence alleged is under Sections 420 r/w. Section 34 of the Indian Penal Code (IPC). Annexure-A1 is the F.I.R and Annexure-A2 is the final report.

2. The basic allegation contained in the final report is that the de facto complainant was forced to avail certain credit facilities from accused Nos.1 and 2 herein upon execution

of certain blank signed papers and blank cheques. According to the de facto complainant, the aforesaid transactions took place in the CRL.MC No.7103 of 2018 3 year 2014 and later, by misusing the aforesaid

blank        signed            documents,        proceedings       were
initiated          against           him    for       grabbing      the
properties         of         the    defacto     complainant.       The
police,        after           completing      the      investigation
thereof,       have       filed      Exhibit     A2     final   report.
This      Crl.M.C.            is    filed   by    the     petitioners

challenging the aforesaid proceedings.

3. Heard Sri.C.A.Chacko, the learned

counsel for the petitioners, Sri. Ranjit George, the learned Public Prosecutor for the State and Sri. Santhosh Puthuval, the learned Counsel for the 2nd respondent.

4. The main contention put forward by the

learned counsel for the petitioners is that, the proceedings in Annexure A2 are a clear abuse of the process of law because the transactions referred to therein are civil in nature. It is CRL.MC No.7103 of 2018 4 pointed out that in respect of the aforesaid

transactions,            both         the     petitioners          filed
separate         civil     suits           before     the    competent
courts.       Annexures        A3     and    A5     are   the   plaints

submitted in the aforesaid suits by petitioners 1 and 2, respectively. In such circumstances, the learned counsel for the petitioners seeks for quashing the aforementioned proceedings.

5. On the other hand, the learned counsel appearing for the 2nd respondent opposes the

aforesaid prayers and submits that the contentions put forward by the learned counsel for the petitioners are questions of fact that could be considered only during the course of the trial and the counsel seeks for dismissal of Crl.M.C.

6. The only question that arises here is

whether any interference in the proceedings is warranted by invoking the powers of this Court CRL.MC No.7103 of 2018 5 under Section 482 of the Cr.PC. The primary contention raised by the petitioners is that the transactions which are the subject matter of

Annexure A2 are purely civil in nature. The learned counsel for the petitioners brought my attention to the specific averments made in the complaint, which forms part of Annexure A1 F.I.R. On going through the same, it can be seen that the specific allegation is that the petitioners have obtained certain signed blank papers from him for availing a credit facility

in the year 2014. Annexure A1 F.I.R. was registered in the year 2017, and the information thereof was furnished on 1.4.2017, which is after three years of the alleged transactions.

7. The learned counsel for the petitioners brought my attention to the pleadings contained in Annexures A3 and A5, which are the plaints submitted by the respective petitioners herein. CRL.MC No.7103 of 2018 6 As far as Annexure A3 plaint is concerned, the prayer sought in the same was for the specific

performance of the agreement executed between the 1st petitioner and the de facto complainant. It is seen from the records that, the aforesaid agreement is a registered agreement. Similarly, in Annexure A5, the prayer sought for by the 2nd petitioner is the return of the advance amount paid to the defacto complainant based on another agreement in respect of the sale of a portion of

the property of the defacto complainant. The agreement based on which the amounts were paid is a registered agreement.

8. On the other hand, the specific

allegation in Annexure-A1 is that, the petitioners had obtained the signature of the defacto complainant on certain blank papers and those documents were misutilized and proceedings were initiated against the defacto complainant. CRL.MC No.7103 of 2018 7 As pointed out by the learned counsel for the

petitioners,             the      aforesaid            complaint            was
submitted            after        three           years           of        the
aforementioned            transactions.           At        the    relevant
time,      Annexure-A3          and    Annexure-A5            suits      were
pending       before       the    respective           courts.         It   is
pointed        out       that    Annexure-A5           suit        numbered

O.S.No.61/2015 on the file of the Sub Court, Thrissur was settled in Lok-Adalat, and the defacto complaint had agreed to return the amount as per the said agreement. Annexure A3 suit numbered as O.S.4569/2014 is pending before the Munsiff Court, Thrissur. The 2nd respondent does not dispute the aforesaid aspects. However, the pendency of the aforementioned civil suits is not seen mentioned in Annexure-A1 F.I.R, which ultimately resulted in the submission of Annexure-A2 final report. The allegation which attracts the criminal offences is that the CRL.MC No.7103 of 2018 8 petitioners obtained signatures of the defacto complainant on certain blank papers. On the other hand, the averments in the suits would indicate that the defacto complainant had, in fact, executed agreements that were registered by following the procedure in this regard. The 2nd respondent had filed written statements in both the above suits, which are produced as Annexures A4 and A6, respectively. In both the said written statements, execution of registered documents in favour of the petitioners was expressly admitted, even though it was averred

that     the     same      were    executed          under   compelling
circumstances.             The     aforesaid           pleadings       run
contrary        to       the    Annexure        A1    complaint.       The
allegation           therein       is        that    the     petitioners
obtained        certain         blank        stamp    papers,    and     by
misusing         the       same,        the         petitioners       were
attempting         to     grab     the       property.       This   is   a
CRL.MC No.7103 of 2018             9

complete deviation from the pleadings of the 2nd respondent in the written statements mentioned above. Moreover, in the complaint, there is no mention of the pendency of the suits even though the said suits were filed in the year 2014 and 2015, whereas the complaint was filed only in the years 2007.

9. Therefore, it is evident that the dispute between the parties is civil in nature, and no criminal prosecution can be allowed to proceed. As per the decision report in Govind Prasad Kejriwal v. State of Bihar[2020(2)KLT 1167(SC)], it is a well settled position of law that, when the dispute is predominantly civil in

nature, the prosecution initiated against the accused can be quashed by invoking the powers under Section 482 of the Cr. PC. In this case, I am convinced that from the records that the dispute is civil in nature and hence, as CRL.MC No.7103 of 2018 10 contended by the learned counsel for the petitioners, no culpability can be attributed against the petitioners herein. Therefore, the only conclusion possible is that the entire prosecution based on Annexure-A2 is a clear abuse of the process of court, and hence, this is a fit case in which the powers of this Court under Section 482 of the Cr.PC can be invoked.

In the result, the Crl. M.C. is allowed, and all further proceedings in C.C.No.2339/2017 on the file of the Judicial First Class Magistrate Court, Irinjalakuda pursuant to Annexure-A2 final report in Crime No.615/2017 of Irinjalakuda Police Station are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.7103 of 2018 11 APPENDIX OF CRL.MC 7103/2018 PETITIONER’S ANNEXURES: ANNEXURE-A1 CERTIFIED COPY OF FIR DATED 1/4/2017 IN

CRIME NO.615/2017 OF IRINJALAKKUDA POLICE STATION ALONG WITH THE COMPLAINT LODGED BEFORE SUPERINTENDENT OF POLICE, THRISSUR DATED 28/3/2017.

ANNEXURE-A2 CERTIFIED COPY OF FINAL REPORT IN CRIME NO.615/2017 OF IRINJALAKKUDA POLICE STATION ANNEXURE-A3 TRUE COPY OF PLAINT IN OS NO. 4569/2014 FILED BY 1ST PETITIONER BEFORE MUNSIFF COURT, THRISSUR ANNEXURE-A4 TRUE COPY OF WRITTEN STATEMENT DATED ANNEXURE-A5 TRUE COPY OF PLAINT IN OS NO. 61/2015 FILED BY 2ND PETITIONER BEFORE SUB COURT, THRISSUR ANNEXURE-A6 TRUE COPY OF WRITTEN STATEMENT FILED IN OS NO. 61/2015

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