Peter vs S. Yesudhas

The Ist accused in C.C. No. 944 of 1987 on the file of the Judicial First Class Magistrate, Padmanabhapuram has filed this petition u/s 482 of

the Code of Criminal Procedure to call for the records in the abovesaid calendar case and quash the same.

The respondent has filed a private complaint against four accused and the petitioner herein is the Ist accused. The allegations in it are briefly as

follows :

On 12-9-1986, the Ist accused entered into an agreement with the complainant for sale of St. Peters R. C. Primary School and the appurtenant

site and that agreement was reduced into writing. On that day, a sum of Rs. 50,000/- was paid as advance and the sale price was agreed as Rs.

2,60,000/- and the balance of sale price was agreed to be paid within three months from the date of the agreement. On 28-10-1986, the Ist

accused sent a telegram to the complainant, asking him to meet him on 10-11-1986. On 3-11-1986, the complainant sent a telegram to the Ist

accused stating that the sale price is ready and asking him to execute the sale deed on 10-11-1986. The complainant went to the house of the Ist

accused and waited for him; but he was not available. On 4-11-1986, the Ist accused sold the said St. Peters R. C. Primary School and the

appurtenant site to accused 2 to 4 by executing a sale deed in the Sub Registrar''s Office. Kunjathukal in Kerala. On 14-11-1986, the Ist accused

sent word through Soman to the complainant to pay the remaining sale price amount and complete the sale. Thus he has committed the offence

punishable u/s 420, I.P.C. and the other accused are liable to be punished u/s 420 read with Section 34, I.P.C.

Mr. V. Sai Ram, learned counsel appearing for the petitioner states that the prosecution regarding the other accused persons were quashed

already. So, we are concerned only with the Ist accused.

Mr. Sai Ram learned counsel would contend that the date of complaint was 18-11-1987, that the complainant had filed a civil suit a 16-11-

1986 against accused 1 to arraying them as defendants 1 to 4 along with sme other defendants in O.S. No. 67 of 1986 on the file of the

Subordinate Judge, Padmanabhapuram for specific performance of the agreement of sale and in that plaint, he has not made any whisper about the

cheating, dishonest representation or dishonest intention at the inception. He would further contend that this dispute is purely of a civil nature and

the petitioner has given a criminal colour for the same, just to fasten criminal liability and the question is who had failed to perform their part of the

contract and that matter can be decided only in a civil suit.

Per contra, Mr. M. Karpagavinayagam, learned counsel appearing for the respondent would contend for the purpose of this proceeding, we

have to confine ourselves to the allegations made in the complaint and that the allegations made therein do make out an offence punishable u/s 420,

I.P.C. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, , the apex court has held that the proceedings against an accused in

the initial stages can be quashed only if on the face of the complaint or papers accompanying the same, no offence is constituted. In other words,

the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out, then the High

Court will be justified in quashing the proceedings in exercise of the powers u/s 482, Cr.P.C. In the complaint, it is alleged that on 12-9-1986, the

agreement was entered into by the Ist accused with the complainant as per which the Ist accused agreed to sell St. Peter R. C. Primary School and

the appurtenant site for a sum of Rs. 2,60,000/- and had received a sum of Rs. 50,000/- as advance. Then on 28-10-1986, he sent a telegram to

the complainant to come on 10-11-1986. On 3-11-1986, the complainant sent a telegram to accused No. 1 informing him that he would come

with the required remaining amount and the sale should be completed. It is alleged that on 10-11-1986, the date on which Ist accused asked the

complainant to come, the complainant went to the house of the Ist accused and waited. But the Ist accused made himself scarce. In the meanwhile,

the Ist accused had sold the very same school and the appurtenant site to the other accused on 4-11-1986 by executing a sale deed in the Sub

Registrar''s office in Kerala. It is alleged that on 14-11-1986, the accused No. 1 had sent word through a person to the complainant asking him to

come with cash and complete the sale. Learned counsel or the complainant rightly pointed out that the subsequent acts of the Ist accused in selling

the very same property on 4-11-1986 after asking the complainant come on 10-11-1986 and making himself scarce on 10-11-1986 and the

subsequent sending of a person on 14-11-1986 to the complainant asking him to come with money as if there was no sale in favour of the other

accused would all lead to the inference that even at the inception, he must have had the dishonest intention. Thus, on the allegations made in the

complaint, the ingredients of an offence punishable u/s 420, I.P.C. are there. Hence at the threshold itself, it cannot be quashed. It has to be seen at

the time of trial whether those allegations are substantiated in evidence or not.

With regard to the contention of Mr. Sai Ram that no allegations are made in the plaint with regard to the cheating, dishonest representation and

dishonest intention at the inception. I am only to say they are totally unnecessary in a suit for specific performance of an agreement of sale. The

omission to mention the same in the complaint is totally immaterial. Hence that cannot be taken into account at this stage. His further contention is

that only in the civil suit, a decision can be arrived at as to who failed to perform the contract is correct. But, on the same set of facts, an action in a

civil court as well criminal prosecution are available in some cases. One does not preclude the other. Both are co-extensive. So, simply because a

suit has been filed in which the question is as to who failed to perform the contract is a relevant issue, a criminal prosecution on specific allegations

making out an offence u/s 420, I.P.C. cannot be quashed.

In view of the above, this petition fails and is dismissed. The trial court shall proceed with the dispose of the case uninfluenced by any of the

observations made in the course of this order.

Petition dismissed.