Upendra Prasad vs State Of Kerala

This petition is filed under Section 438 of the Cr.P.C.

The petitioners herein are the accused Nos. 1 to 3 in Crime No.3599 of 2017 of the Ernakulam Central Police Station, registered under Sections 406 and 420 r/w. 34 of the Indian Penal Code.

The 1st petitioner is the husband of the 2nd petitioner and the 3rd petitioner is their son. The petitioners owned substantial extent of properties. According to the prosecution, on 26.5.2015, two agreements were executed in favour of the de faco complainant. The first one was by the 1st petitioner and the 2nd agreement was jointly executed by the petitioners 2 and 3. The petitioners received a total sum of Rs.57 Lakhs from the de facto complainant on various occasions. After the initial period of 9 months fixed as per the agreement, the period of its validity was duly extended till 30.6.2016. Portions of the property were sold by the petitioners as per the terms of the agreement, to the parties nominated by the de facto complainant. However, it is alleged that the petitioners violated the agreement and during the extended period of the agreement, clandestinely sold the properties to accused Nos. 4 , 5 , 7 8 and 9 without the knowledge or concurrence of the de facto complainant. It is further alleged that the petitioners failed to pay the amount received by way of advance and thus cheated the de facto complainant.

The learned counsel appearing for the petitioners submitted that the allegations are without basis. The de facto complaint is a property broker. The de facto complainant has no case that the petitioners were not the owners of the property or that they had no authority to enter into the agreement. It is true that separate agreements were entered into. However, the understanding between the parties were violated by the de facto complainant. After the expiry of the extended period of agreement on 30.6.2016, the petitioners were free to assign the property to the persons they choose and the de facto complainant has no say in the matter. It is submitted that a purely civil dispute has been given the cloak of a criminal offence in disguise. Even if the the petitioners had violated the terms of the agreement, the de facto complainant could have got the agreement specifically enforced by filing appropriate suit. By getting a Crime registered against the petitioners who are law abiding citizens the intention of the de facto complainant is to humiliate them and to cause disgrace.

The de facto complainant has entered appearance through his counsel and he has also filed a detailed objection. It is admitted in the objection that the de facto complainant is indeed engaged in the real estate business and is the major distributor of a sugar cane factory at Maharashtra. The agreement was entered into in respect of 1.09 Acres of property and the understanding was that the possession of the land would be handed over to the de facto complainant and he would develop the said land and thereafter sell the properties to his nominees. According to the learned counsel, the petitioners were bound to register the plots to the prospective purchasers as per the directions of the de facto complainant and the act of the petitioners in assigning portion of the property to strangers can only be regarded as violation of the terms of the agreement. It is further submitted that the petitioners have benefited substantially by their illegal acts.

I have considered the submissions advanced. It appears that a legal notice was issued by the de facto complainant through his Advocate, a copy of which has been produced as Annexure-A4. As per the said agreement, the de facto complainant has called upon the petitioners and others and to perform as per the covenants in the agreement for sale. After going through the materials, it appears that the dispute revolves around two agreements entered into between the parties concerning an item of property having a total extent of 1.09 Acres. Question is whether the petitioners have violated the terms of the agreement or whether they were justified in assigning their property after the period fixed in the agreement. At any rate, this does not appear to be a case in which the custodial interrogation of the petitioners are warranted. The materials are borne out from documents and in that view of the matter, I am inclined to allow this petition by imposing appropriate conditions.

In the result, this petition will stand allowed. The petitioners are directed to appear before the investigating officer within ten days from today and shall undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum. The above order shall be subject to the following conditions:

i) The petitioners shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for one month or till final report is filed, whichever is earlier.

ii) The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer.

iii) The petitioners shall not commit any similar offence while on bail.

iv) The petitioners shall not leave the country without obtaining the previous permission of the court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.