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Judgment
The petitioners are accused No.2 and 3 in Crime No.1646 of 2018 of Sasthamcotta Police Station. The above case was registered by the
Sasthamcotta police against the petitioners and another alleging offence punishable under Section 420 read with 34 IPC.
The gist of the prosecution allegation is that the 2nd respondent had purchased the property from the 1st accused in the above crime case, who is
the absolute owner of the property. According to the de facto complainant, she had purchased the property from the 1st accused and held the property
for 8 years. While she was in possession of the property, she pledged the same in Indian Bank and obtained a loan. According to the de facto
complainant, her father and mother resided in the property till 7.4.2010. On 7.4.2010 a process surveyor from Sub Court, Kollam served a summons
on her in O.S.No.641 of 1995. The de facto complainant had stated in the First Information Statement that while the property was in the possession of
1st accused, there was an injunction from the Sub Court against the transfer of property, and this fact was aware to the 1st accused and suppressing
this fact, the sale deed was executed in favour of the de facto complainant for a sale consideration of Rs.3,50,000/-. There is also an allegation that
the 2nd accused, who is the 1st petitioner herein had collected an amount of Rs.25,000/- from the father of the de facto complainant claiming that he
will settle the entire issues. On the basis of this allegation, Crime No.1646 of 2018 was registered by Sasthamcotta Police, alleging offence punishable
under Section 420 read with 34 IPC. Annexure-I is the FIR. The petitioners want to quash the entire proceedings against them.
Heard the counsel for the petitioners and the Public Prosecutor.
The counsel for the petitioners submitted that even if the entire allegations in Annexure A1 First Information Statement are accepted in toto, there is
no allegation against the petitioners to attract an offence under Section 420 IPC. The counsel submitted that even if any criminal offences is made out,
only the 1st accused is liable for the same and the petitioners who are the 2nd and 3rd accused cannot be implicated in this case. The counsel also
submitted that on the very same set of facts, the de facto complainant's father filed a complaint, which resulted in Annexure-A5 refer report by which
the further action was dropped. The counsel also submitted that a private complaint was also filed by the father of the de facto complainant against
the 2nd petitioner and the 1st accused in the above case. In that case, the accused were acquitted u/s.256 (2) Cr.P.C. Moreover, the counsel also
submitted that a suit was filed by the 2nd respondent in connection with the above property transaction and that suit was dismissed as not pressed as
evident by Annexure-II judgment. The counsel submitted that the continuation of the investigation against the petitioners based on Annexure-I is an
abuse of process of law.
The Public Prosecutor submitted that this petition is to quash the F.I.R and the Public Prosecutor submitted that this Court may not quash an F.I.R
because the case is pending investigation.
This is a petition to quash the proceedings against the petitioners based on Annexure-1 FIR. I perused Annexure-1 FIR along with the First
Information Statement given by the 2nd respondent. The admitted case of the 2nd respondent in Annexure-1 FIR is that she purchased the property of
the 1st accused in the above case after paying the consideration on 18.9.2002. Thereafter, her parents were staying in the house situated in the above
property. After that, on 7.4.2010 an Amin from the Kollam Sub Court came and then only she came to know that there was an injunction order
against the 1st accused in transacting the property. After 7.4.2010, Annexure-I FIR was registered on 20.8.2016. That means the complaint is filed
after 8 years. I perused the First Information Statement. There is no serious allegation against the petitioners in this Criminal Miscellaneous Case. The
only allegation against the petitioners is that the petitioners persuaded the 2nd respondent and her husband to purchase the property. There is no case
to the 2nd respondent that the petitioners were aware that an injunction order was there against the 1st accused in alienating the property. The further
case against the petitioners is that the petitioners collected an amount of Rs.25,000/- in May 2010 to settle the case. Even if this is accepted, the
offence under Section 420 IPC is not prima facie made out against the petitioners. Admittedly the property transaction was in 2002. The 2nd
respondent came to know about the alleged illegality in the transfer of the property in 2010. Thereafter, the complaint was filed in 2018. I do not want
to make any observation about the allegation against the 1st accused. But as far as the petitioners are concerned, there is nothing against them in
Annexure-1 F.I.R and F.I.Statement to attract the offence under section 420 IPC.
Moreover, a suit filed by the 2nd respondent in connection with the above property transaction was dismissed as not pressed as evident by
Annexure-II on 14.1.2013. Similarly Annexure-III is an order passed by the Judicial Magistrate of the First Class, Karunagappally acquitting the 2nd
petitioner and the 1st accused under Section 256(2) Cr.P.C. The allegation in the above complaint was also in connection with the same property
transaction. The parents of the de facto complainant filed a complaint before the Hon'ble Chief Minister of Kerala and based on the same, Crime
No.189 of 2011 was registered. That case was referred, as evident by Annexure-V refer report with a finding ""further action dropped"".
In such circumstances, the proceedings against the petitioners based on Annexure-I First Information Report will be an abuse of process of Court.
When the above Criminal Miscellaneous Case came up for consideration on 5.12.2018, this Court admitted the Criminal Miscellaneous Case and
passed the following orders.
Admit.
Learned Public Prosecutor takes notice for the 1st respondent. Issue urgent notice by speed post to the 2nd respondent.
Heard the learned counsel appearing for the petitioners and I have gone through Annexure-I FI Statement. The property was purchased by the de
facto complainant from the 1st accused, who is the sister of the petitioners herein, and the allegations are mainly centered against the 1st accused.
Furthermore, it does not appear from Annexures-I to V that the petitioners were aware of the pendency of O.S.No.641 of 1995 on the file of the Sub
Court, Kollam.
Having regard to the facts, there shall be an interim order, as prayed for, for a period of two months from today.
Based on the above order, notice was issued to the 2nd respondent who is the de facto complainant. Eventhough she received notice, she did not
appear in this case. As I observed above, even if the entire allegations in Annexure-1 F.I.R are accepted, there is nothing in it, to attract an offence
under Section 420 read with 34 IPC against the petitioners. According to me, the continuation of the proceedings against the petitioners based on
Annexure-1 F.I.R will be an abuse of process of Court.
Therefore, this Criminal Miscellaneous Case is allowed. All further pcoeedings against the petitioners based on Annexure-1 F.I.R (Crime No.1646 of
2018 of Sasthamcotta Police Station) are quashed.