BY AD vs C.G.RAJ KUMAR

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31 BY ADVS. C.G.RAJ KUMAR AKSHAY JOSEPH ADHIKARAM P.ROHIT PREMANANDAN SHENOY OTHER PRESENT: SRI. M.C. ASHI, PP. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.03.2025, THE COURT ON 19.03.2025 PASSED THE FOLLOWING: Crl.M.C.No.6067/21 3 V.G.ARUN, J = = = = = = = = = = = = = = = = = Crl.M.C.No.6067 of 2021 = = = = = = = = = = = = = = = = = = Dated this the 19th day of March, 2025 ORDER Petitioner is the 1st accused in C.C.No.912 of 2019 pending on the files of the Judicial Magistrate of First Class -II, Cherthala. The case originated from Annexure A1 complaint filed by the 3rd respondent and forwarded to the police for investigation under Section 156(3) of Cr.P.C. The allegations in Annexure A1 complaint are to the following effect; The complainant and 1st accused are members of Kadamattu Tharavadu in Kuthiyathodu. The properties of Kadamattu Tharavadu was partitioned in the year 1115 ME, as per Document No.829/1115 of Arookutty Sub Registry. In the partition deed, 15 cents of land and the Tharavadu house situated in Survey No.293/7 in Kuthiyathodu village was set Crl.M.C.No.6067/21 4 apart in common for the members. Parukutty, Meenakshi and her minor son Bhaskaran are members of the 2 nd Sakha mentioned in the partition deed. Petitioner is the son of Parukutty and complainant is the son of Bhaskaran. Upon Meenakshi's death her right over the Tharavadu house and 15 cents devolved on her son Bhaskaran and on Bhaskaran's death, upon his children, including the complainant. The 1st accused and his mother Parukuttiamma were staying in the Tharavadu house. While so, Parukuttiamma clandestinely assigned the common property to her son, the 1st accused, as per Settlement Deed No.779 dated 29.02.1996 of the Kuthiyathodu Sub Registry, by suppressing the fact that it belongs to all members of the Tharavadu. Thereafter, the 1st accused assigned the property in favour of his son, the 2 nd accused vide Settlement Deed dated 02.08.2014. The accused committed fraud by falsely stating in the Settlement Deed that Meenakshiamma had died issueless. The said false statement was made deliberately, as Parukuttiamma and the accused were Crl.M.C.No.6067/21 5 well aware that Meenakshiamma had a son named Bhaskaran, which is mentioned in the partition deed also. Having got the document of assignment registered by committing fraud, the accused rendered themselves liable to be prosecuted for the offences under Sections 120B, 420, 421, 427, 465, 468 and 471 read with Section 34 of IPC. The police, after investigation, charge sheeted the accused for the offences alleged in the complaint. This Crl.M.C is filed seeking to quash the final report and further proceedings against the petitioner.

2. Heard Adv.K.S.Hariharaputhran for the petitioner, Adv.Akshay Joseph for the 3rd respondent and Public Prosecutor Adv.M.C.Ashi for respondents 1,2 and 4.

3. Learned counsel for the petitioner contended that the allegations in the complaint and the final report, even if accepted in its entirety, will not attract any of the alleged offences. It is submitted that one Anil Kumar has filed a suit claiming to be a co-owner and seeking to injunct the petitioner and his son from demolishing the existing Tharavadu house for Crl.M.C.No.6067/21 6 constructing new residential building. It is argued that, merely for the reason that allegation of forgery is raised, criminal prosecution is not maintainable, as the civil court is competent to decide all issues. To buttress the contention, the decisions of the Apex Court in Paramjeet Batra v. State of Uttarakhand and Others [(2013) 11 SCC 673] and Vijayasarathy R.K. (Prof) and Another v. Sudha Seetharam and Another [(2019) 16 SCC 739] as also the decisions of this Court in Sanjeev Kumar K.P. v. Puthanpurayil Abdul Salam and Another [2014 KHC 431], Anilakumari v. State of Kerala and Others [2019 (3) KHC 311] and Biju K.Peter and Others v. State of Kerala and Another [2022 (2) KHC 262] are pressed into service.

4. Per contra, learned counsel for the 3rd respondent argued that pendency of a civil suit is not an embargo against prosecuting the accused for the criminal offence committed by them. It is submitted that the petitioner's mother had executed settlement deed in his favour, by falsely stating that her sister Crl.M.C.No.6067/21 7 Meenakshiamma had died issueless. Had true facts been narrated, the settlement deed would not have been registered. Inasmuch as the document was registered by concealment of fact, it amounts to cheating as defined in Section 415 of the IPC.

5. The short question arising for consideration is whether criminal proceedings are maintainable when civil suit based on the same allegations is pending. No doubt, a dispute which is essentially of a civil nature cannot be given the cloak of criminal offence, when civil remedy is available and has been availed. Be that as it may, there may also be instances like the one at hand where the facts give rise to a civil claim and also amount to an offence. In such event, criminal prosecution is maintainable, as held by the Apex Court in Lalmuni Devi. v. State of Bihar [(2001) 2 SCC 17], the relevant portion of which reads as under; “8. There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also Crl.M.C.No.6067/21 8 amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed.”

6. In the petitioner's case, there is a specific allegation that the Tharavadu property kept in common was transferred to the petitioner by falsely stating in the settlement deed that the complainant's grandmother had died issueless. As rightly contended by the counsel for the 3rd respondent, dishonest concealment of facts is deception and amounts to cheating under Section 415 of IPC. The question whether the false statement was included with the petitioner's knowledge is a matter of evidence and cannot be decided under Section 482 of the Code. For the aforementioned reasons, the Crl.M.C is dismissed. sd/- V.G.ARUN, JUDGE Crl.M.C.No.6067/21 9 APPENDIX OF CRL.MC 6067/2021 PETITIONER ANNEXURES Annexure A1 Annexure A2 TRUE COPY OF THE FIR DATED 3.11.2016 IN CRIME NO.1181/2016 OF THE KUTHIYATHODE POLICE STATION. TRUE COPY OF THE FINAL REPORT IN C.C.NO.912/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, CHERTHALA ARISING FROM CRIME NO.1181/2016 OF KUTHIYATHODE POLICE STATION, ALAPPUZHA DISTRICT DATED 5.10.2018.

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31 BY ADVS. C.G.RAJ KUMAR AKSHAY JOSEPH ADHIKARAM P.ROHIT PREMANANDAN SHENOY OTHER PRESENT: SRI. M.C. ASHI, PP. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.03.2025, THE COURT ON 19.03.2025 PASSED THE FOLLOWING: Crl.M.C.No.6067/21 3 V.G.ARUN, J = = = = = = = = = = = = = = = = = Crl.M.C.No.6067 of 2021 = = = = = = = = = = = = = = = = = = Dated this the 19th day of March, 2025 ORDER Petitioner is the 1st accused in C.C.No.912 of 2019 pending on the files of the Judicial Magistrate of First Class -II, Cherthala. The case originated from Annexure A1 complaint filed by the 3rd respondent and forwarded to the police for investigation under Section 156(3) of Cr.P.C. The allegations in Annexure A1 complaint are to the following effect; The complainant and 1st accused are members of Kadamattu Tharavadu in Kuthiyathodu. The properties of Kadamattu Tharavadu was partitioned in the year 1115 ME, as per Document No.829/1115 of Arookutty Sub Registry. In the partition deed, 15 cents of land and the Tharavadu house situated in Survey No.293/7 in Kuthiyathodu village was set Crl.M.C.No.6067/21 4 apart in common for the members. Parukutty, Meenakshi and her minor son Bhaskaran are members of the 2 nd Sakha mentioned in the partition deed. Petitioner is the son of Parukutty and complainant is the son of Bhaskaran. Upon Meenakshi's death her right over the Tharavadu house and 15 cents devolved on her son Bhaskaran and on Bhaskaran's death, upon his children, including the complainant. The 1st accused and his mother Parukuttiamma were staying in the Tharavadu house. While so, Parukuttiamma clandestinely assigned the common property to her son, the 1st accused, as per Settlement Deed No.779 dated 29.02.1996 of the Kuthiyathodu Sub Registry, by suppressing the fact that it belongs to all members of the Tharavadu. Thereafter, the 1st accused assigned the property in favour of his son, the 2 nd accused vide Settlement Deed dated 02.08.2014. The accused committed fraud by falsely stating in the Settlement Deed that Meenakshiamma had died issueless. The said false statement was made deliberately, as Parukuttiamma and the accused were Crl.M.C.No.6067/21 5 well aware that Meenakshiamma had a son named Bhaskaran, which is mentioned in the partition deed also. Having got the document of assignment registered by committing fraud, the accused rendered themselves liable to be prosecuted for the offences under Sections 120B, 420, 421, 427, 465, 468 and 471 read with Section 34 of IPC. The police, after investigation, charge sheeted the accused for the offences alleged in the complaint. This Crl.M.C is filed seeking to quash the final report and further proceedings against the petitioner.

2. Heard Adv.K.S.Hariharaputhran for the petitioner, Adv.Akshay Joseph for the 3rd respondent and Public Prosecutor Adv.M.C.Ashi for respondents 1,2 and 4.

3. Learned counsel for the petitioner contended that the allegations in the complaint and the final report, even if accepted in its entirety, will not attract any of the alleged offences. It is submitted that one Anil Kumar has filed a suit claiming to be a co-owner and seeking to injunct the petitioner and his son from demolishing the existing Tharavadu house for Crl.M.C.No.6067/21 6 constructing new residential building. It is argued that, merely for the reason that allegation of forgery is raised, criminal prosecution is not maintainable, as the civil court is competent to decide all issues. To buttress the contention, the decisions of the Apex Court in Paramjeet Batra v. State of Uttarakhand and Others [(2013) 11 SCC 673] and Vijayasarathy R.K. (Prof) and Another v. Sudha Seetharam and Another [(2019) 16 SCC 739] as also the decisions of this Court in Sanjeev Kumar K.P. v. Puthanpurayil Abdul Salam and Another [2014 KHC 431], Anilakumari v. State of Kerala and Others [2019 (3) KHC 311] and Biju K.Peter and Others v. State of Kerala and Another [2022 (2) KHC 262] are pressed into service.

4. Per contra, learned counsel for the 3rd respondent argued that pendency of a civil suit is not an embargo against prosecuting the accused for the criminal offence committed by them. It is submitted that the petitioner's mother had executed settlement deed in his favour, by falsely stating that her sister Crl.M.C.No.6067/21 7 Meenakshiamma had died issueless. Had true facts been narrated, the settlement deed would not have been registered. Inasmuch as the document was registered by concealment of fact, it amounts to cheating as defined in Section 415 of the IPC.

5. The short question arising for consideration is whether criminal proceedings are maintainable when civil suit based on the same allegations is pending. No doubt, a dispute which is essentially of a civil nature cannot be given the cloak of criminal offence, when civil remedy is available and has been availed. Be that as it may, there may also be instances like the one at hand where the facts give rise to a civil claim and also amount to an offence. In such event, criminal prosecution is maintainable, as held by the Apex Court in Lalmuni Devi. v. State of Bihar [(2001) 2 SCC 17], the relevant portion of which reads as under; “8. There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also Crl.M.C.No.6067/21 8 amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed.”

6. In the petitioner's case, there is a specific allegation that the Tharavadu property kept in common was transferred to the petitioner by falsely stating in the settlement deed that the complainant's grandmother had died issueless. As rightly contended by the counsel for the 3rd respondent, dishonest concealment of facts is deception and amounts to cheating under Section 415 of IPC. The question whether the false statement was included with the petitioner's knowledge is a matter of evidence and cannot be decided under Section 482 of the Code. For the aforementioned reasons, the Crl.M.C is dismissed. sd/- V.G.ARUN, JUDGE Crl.M.C.No.6067/21 9 APPENDIX OF CRL.MC 6067/2021 PETITIONER ANNEXURES Annexure A1 Annexure A2 TRUE COPY OF THE FIR DATED 3.11.2016 IN CRIME NO.1181/2016 OF THE KUTHIYATHODE POLICE STATION. TRUE COPY OF THE FINAL REPORT IN C.C.NO.912/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, CHERTHALA ARISING FROM CRIME NO.1181/2016 OF KUTHIYATHODE POLICE STATION, ALAPPUZHA DISTRICT DATED 5.10.2018.