Kerala High Court
Naseema Beevi vs State Of Kerala on 28 November, 2019
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941
Crl.MC.No.2302 OF 2013
AGAINST THE ORDER/JUDGMENT IN CC 149/2010 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I, ATTINGAL
IN CRIME NO.478/2008 OF ATTINGAL POLICE STATION,
THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
NASEEMA BEEVI,
D/O.RUKHIYA BEEVI,
RAHMATH MANZIL, KOLOTH,
EDAKKODE VILLAGE, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT
BY ADVS.
SRI.AYYAPPAN SANKAR
SMT.S.HRIDYA
SRI.JAYAN JOHN
RESPONDENTS/STATE,COMPLAINANT& DE-FACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
2 SUB INSPECTOR OF POLICE,
ATTINGAL POLICE STATION, ATTINGAL,
THIRUVANANTHAPURAM.PIN-695286
3 RASEENA,
AGED 44 YEARS,
W/O.SIRAJUDEEN,
SERIN MANZIL,VALAKKADU,
EDAKKODE VILLAGE,ATTINGAL,
THIRUVANANTHAPURAM DISTRICT.PIN-695288
R1, R3 BY ADV. SRI.M.R.SARIN PANICKER
OTHER PRESENT:
SRI. P.N. SUMODU-PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-11-
2019, THE COURT ON 28-11-2019 PASSED THE FOLLOWING:
Crl.MC.No.2302 of 2013
2
ORDER
Dated this the 28th day of November, 2019 The petitioner, the sole accused in C.C No.149/2010 before Judicial First Class Magistrate -I, Attingal, invokes Section 482 of Cr.P.C to quash Annexure A4 final report in Crime No.478/2008 submitted by SI of Police, Attingal seeking to prosecute him for offence punishable under Section 420 of I.P.C.
2. The prosecution case is that the petitioner agreed with the defacto complainant, Raseena Beevi to sell 114 cents of land owned by her husband for an amount of Rs.13,000/- per cent within a period of six months misrepresenting the property as her own and accepted an amount of Rs. 2 lakh in advance as part of sale consideration and even after expiry of the time fixed, she committed breach of promise and failed to execute the sale deed as undertaken as per the Annexure A5 karar dated 19.3.2008. It is further alleged that the petitioner afterwards executed another agreement for sale in the name of third parties.
3. The contention of the petitioner is that there was no agreement between herself and defacto complainant and therefore Crl.MC.No.2302 of 2013 3 itself charge under Section 420 of I.P.C cannot sustain for a moment. It was further contended that even taking for granted that the prosecution allegations in Annexure A4 are true also, they are insufficient to disclose commission of an offence punishable under Section 420 I.P.C. In this connection, Annexure A2 complaint lodged by the defacto complainant before Judicial First Class Magistrate -I, Attingal, was brought to my notice. It is on the basis of Annexure A2, the present crime was registered and consequently, Annexure A4 final report came into vogue. Paragraph 2 of Annexure A2 unambiguously reveals that the extent of 114 cents agreed to be sold was mentioned by her as belonging to both spouses and petitioner is a co-owner.
4. Under Section 420 I.P.C, in order to constitute an offence of cheating, there must have been dishonest inducement practised on the person deceived. Admittedly, in the present case, the agreement dated 19.3.2008 was as between the accused and husband of the defacto complainant. The defacto complainant is not a party to the transaction at all. Therefore itself, allegation that she was subjected to dishonest inducement cannot sustain for a moment at all. This strikes at the very root of the prosecution and gives sufficient ground for quashing Annexure A4 final report.
5. Annexure A5 agreement for sale clearly reveals that Crl.MC.No.2302 of 2013 4 petitioner had mentioned the property to be jointly owned by them. There is nothing in Annexure A5 to indicate that petitioner transacted with the husband of the defacto complainant in respect of a property over which she did not have any right or interest. In Annexure A2 complaint also, there is no averment that she represented that property solely belonged to her husband. She claimed only to be one of the co-owners of the property. Law does not preclude or rather prevent one of the co-owners from undertaking to sell property that stands in the name of the other co-owner as well. An act of entering into such a transaction on behalf of the co-owner presumably under an implied authority is not a criminal act at all. An agreement entered into by one of the co-owners is certainly enforcible under Specific Relief Act, 1963 also provided stipulations under Section 12 of that Act are complied with. Therefore, for the sole reason that husband of the petitioner was not made a party to Annexure A5 agreement for sale, act of the petitioner cannot be branded as act of deception at all.
6. It appears from the facts presented that petitioner owns only a short extent of 25 cents and the rest belonged to her husband. In Paragraph 4 of Annexure A2, the defacto complainant herself admits that petitioner went to the extent of agreeing for selling her share of 25 cents. Therefore, one fails to understand as to how Crl.MC.No.2302 of 2013 5 petitioner could have acted with deceptive intention. Position would have been rather different had it been a case in which she totally disowned her liability. In a prosecution under Section 420, what is relevant is the dishonest intention that existed with the promissor at the time of his entering into a contract or promise. There is nothing on record nor allegations in the private complaint or final report which make out that petitioner had such dishonest intention at the time of making of promise as on 19.3.2008. My attention was also drawn to Annexure A7 reply notice in which the petitioner had taken a plea that she was even willing to return the advance amount received, to a substantial extent. She offered to return even 1 ½ lakh rupees to the husband of the complainant. Whether this offer is genuine or otherwise is a different issue. This could be reckoned as one of the circumstances which belies the allegation that she had any dishonest intention to deceive the defacto complainant or her husband at the very beginning of entering into Annexure A5.
7. On looking at the nature of dispute that has arisen between parties, it appears that, what is involved is a dispute on civil rights. The rights of the disputants could be settled only before a Civil court in appropriate proceedings. The allegations made in Annexure A4 final report do not disclose commission of offence punishable under Section Crl.MC.No.2302 of 2013 6 420 I.P.C. Therefore, the impugned final report requires to be quashed.
In the circumstances, this Criminal Miscellaneous Case is allowed quashing the final report in C.C No. 149/2010 before Judicial First Class Magistrate -I Attingal. It is, however, made clear that none of the observations made in this order shall affect or prejudice the rights of a defacto complainant or her husband in pursuing appropriate remedies of law in appropriate forums.
Sd/-
T.V.ANILKUMAR JUDGE NR/28/11/19 Crl.MC.No.2302 of 2013 7 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME
NO.478/2008 OF THE ATTINGAL POLICE STATION
ANNEXURE A2 CERTIFIED COPY OF THE COMPLAINT FILED BY
THE 3RD RESPONDENT BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-1,ATTINGAL AS
C.M.P NO.4630/08
ANNEXURE A3 TRUE COPY OF THE LAWYER'S NOTICE ISSUED BY
3RD RESPONDENT'S HUSBAND TO THE PETITIONER
DATED 28-05-2008
ANNEXURE A4 CERTIFIED COPY OF THE FINAL REPORT/CHARGE
IN CRIME NO.478/2008 OF THE ATTINGAL POLICE
STATION
ANNEXURE A5 TRUE COPY OF THE AGREEMENT FOR SALE DATED
19/3/2008 EXECUTED BY THE PETITIONER IN
FAVOUR OF THE HUSBAND OF THE 3RD RESPONDENT
ANNEXURE A6 TRUE COPY OF THE LAWYER NOTICE DATED
7/11/2008 ISSUED BY ADV.S.SEHIM TO THE
PETITIONER
ANNEXURE A7 TRUE COPY OF THE REPLY NOTICE SENT ON
12/11/2008
ANNEXURE A8 TRUE COPY OF THE SALE DEED NO.2314/1992
DATED 23/9/1992 OF ATTINGAL S.R.O
ANNEXURE A9 TRUE COPY OF THE ORDER DATED 6/6/2008 OF
THE HON'BLE HIGH COURT IN B.A.NO.3643/2008
ANNEXURE A10 TRUE COPY OF THE ORDER DATED 4/9/2008 IN
BA NO.5542/2008
ANNEXURE A11 TRUE COPY OF THE JUDGMENT DATED 26/8/2008
IN W.P.(C) NO.25011/2008