John Milton vs State of Kerala and Others

K. Ramakrishnan, J.—This is an application filed by the sole accused in C.C. No. 43/2012 on the file of the Chief Judicial Magistrate Court, Kottayam to quash the proceedings u/s 482 Code of Criminal Procedure (herein after called the ''Code''). It is alleged in the petition that the petitioner and his mother-in-law borrowed an amount of 23 lakhs from the 2nd respondent de facto complainant and his wife and executed two sale deeds in their favour as security for the transaction on the understanding that as and when the loan amount is paid with interest, the de facto complainant and his wife will re-convey the property to them. When this was not done, the petitioner along with his mother-in-law filed Annexure A1 suit as O.S. No. 613/2011 on the file of the Additional Sub Court, Kottayam seeking the relief for a declaration that sale deed Nos. 4458/2005 and 4459/2005 dated 17.11.2005 of Sub Registrar office, Ettumanoor executed by the 1st plaintiff in favour of the defendants in that suit, who includes the de facto complainant, is null and void and declare the title of the property in favour of the 1st plaintiff and also to declare the document No. 2808/1/2009 dated 13.10.2009 of Sub Registrar office, Eattumannoor executed by the de facto complainant and his wife in favour of the 3rd defendant in that suit as null and void and also declare the title of that property also in favour of the 1st plaintiff and for consequential injunction as well. It is thereafter that the de facto complainant filed a complaint before the Chief Judicial Magistrate Court, Kottayam alleging that the release deed No. 4094/05 alleged to have been entrusted to the de facto complainant was obtained by the petitioner on the pretext of getting some legal opinion for purchasing a portion of the property assigned in favour of the de facto complainant and his wife and thereafter he had cheated him by not returning the document and filed the above suit against them and thereby committed an offence punishable u/s 420 of the Indian Penal Code, which was forwarded to the police for investigation u/s 156(3) of the Code. After investigation, Annexure A3 final report was filed and the learned Magistrate has taken cognizance of the case as CC No. 43/12. According to the petitioner, there is no probability for the de facto complainant handing over this document alone to the petitioner as claimed by him in the criminal case and the criminal case itself was filed after the petitioner herein along with his mother-in-law filed Annexure A1 suit with a view to escape from the consequence of that suit. So, no offence u/s 420 of Indian Penal Code is attracted and he prayed for quashing the proceedings invoking the power u/s 482 of the Code. Hence this petition.

Heard the learned counsel for the petitioner, the 2nd respondent and the Public Prosecutor.

The counsel for the petitioner submitted that considering the circumstances and also the nature of things happened, the case of the de facto complainant is not probable and if it is not probable and there is no possibility of such circumstances arises then, this Court can invoke u/s 482 of the Code and quash the proceedings.

On the other hand, the counsel for the 2nd respondent submitted that, this Court, at this stage only has to consider as to whether the materials available on record are sufficient to attract the offence alleged and the genuineness of the evidence collected by the prosecution and its reliability etc. are matters to be considered by the Magistrate on the basis of evidence to be adduced later as not at this stage. So this is not a fit case where the power u/s 482 of the Code has to be invoked to quash the proceedings. The learned Public Prosecutor also supported the arguments of the counsel for the 2nd respondent.

The fact that the property belongs to the mother-in-law of the petitioner and the property was sold to the de facto complainant and his wife by virtue of 2 documents in the year 2005 is not in dispute. The question is whether it was a real transaction of sale or only a money transaction for which these documents were executed as a security as claimed by the petitioner. This is a matter to be decided in the suit filed by the petitioner and his mother-in-law. Further on going through the statements of the witnesses, it is seen that, the document appears to have been handed over to the de facto complainant and it was also the case of the de facto complainant that the particular document which is in dispute has been handed over to the petitioner herein, on the promise made by him that he intends to purchase some portion of property where the house is situated by paying valuable consideration and he wants to get a legal opinion regarding the same and for the purpose of availing loan from the bank for raising funds, for this purpose he wants to show this document to the bank as well. It is on the basis of that promise that the document has been handed over and subsequently the document was not returned, but he filed a suit along with his mother-in-law and thereby cheated him.

The question whether the document has been entrusted to the de facto complainant at the time when the sale deed was executed in the year 2005 and whether it was subsequently handed over to the petitioner herein, etc. are matters to be proved by evidence. There is probability on either side. If that probability has to be considered only on the basis of evidence, then this Court cannot invoke the power u/s 482 of the Code and quash the proceedings at the initial stage itself. I am not expressing any opinion as to whether the allegations are sufficient to attract the offence u/s 420 of the Indian Penal Code or not or whether the prosecution case is genuine etc. at this stage. There is no dispute regarding proposition laid down in the decision reported in State of Haryana and others Vs. Ch. Bhajan Lal and others, regarding the circumstances under which this Court can invoke the power u/s 482 of the Code to quash proceedings. In that case as well as the subsequent decision of the Supreme Court, it has been categorically stated that, when the case cannot be decided on the basis of averments alone, or on the pure question of law alone, then it is always better to relegate the parties to get the case decided by the trial court and it is not proper for this Court to invoke u/s 482 of the Code. So, under the circumstances, I feel that it is not a fit case to invoke Section 482 of the Code to quash the proceedings and the petitioner is at liberty to raise all the contentions raised by him in this proceedings before the trial court. He is also at liberty to file an application for discharge raising these contentions as well.

The counsel for the petitioner also submitted that, non bailable warrant is pending against him and he wants this Court to give a direction to the Magistrate to grant him bail on his surrender and also dispense his personal appearance during the trial stage. I don''t think that it is proper for this Court to usurp the jurisdiction of the Magistrate in such matters. However, if the petitioner surrenders before the concerned Magistrate Court, namely, Chief Judicial Magistrate Court, Kottayam and move for recalling the warrant and also for bail, the learned Magistrate is at liberty to consider the same on merit and pass appropriate orders in accordance with law at any rate on the same date on which it was filed before that court. The learned Magistrate is also at liberty to consider the application for dispensing the personal appearance of the accused u/s 205 of the Code and pass appropriate orders in that application also in accordance with law, as in this case there is no dispute regarding the identity of the parties and only the question regarding the probability of the case need alone be considered. With the above observation and direction, the petition is dismissed. The petitioner is directed to surrender before the concerned Magistrate Court on 29.01.2014 and move for recalling the warrant, and for bail and dispense with his personal appearance during the trial and the Magistrate is directed to consider and pass appropriate orders on the application on the same date itself. Till then the learned Magistrate is directed to keep in abeyance the execution of the non-bailable warrant issued against the petitioner. If the petitioner did not surrender as directed by this Court, then the Magistrate is liberty to proceed against the petitioner to procure his presence in accordance with law. Interim stay granted by this Court as per order in Crl.M.A. 1879/13 and extended from time to time is hereby vacated with the above observation.

The Registry is directed to communicate this order to the concerned Magistrate Court immediately. The Office is directed to send back the Lower Court Records to the court below forthwith.