ELAMMA JOHN Vs. MERCY

JUDGEMENT

(1.) This petition is filed under Section 482 of the Code of Criminal Procedure by the accused in C.C.No. 217 of 1997 on the file of the Judicial First Class Magistrate's Court, Sulthan Bathery.

(2.) The petitioner is the accused in the above said case and she has received a summons to appear before the Judicial First Class Magistrate's Court, Sulthan Bathery on 27-12-1997. The first respondent herein is the complainant in the said case. The petitioner was having a total extent of 4 acres of immovable property. Out of the said property, she had sold 11/2 acres to three persons inclusive of the first respondent complainant. The balance 21/2 acres will be worth more than Rs. 4 lakhs. The petitioner/accused had availed a loan of Rs. 25,000/- from the State Bank of India, Kynatty Branch by, pledging her properties. Considering the value of the property, the loan amount was very negligible. At the time of execution of the documents itself, the petitioner had divulged the fact that there was a loan from the bank and all the three purchasers including the first respondent purchased the properties knowing fully well about the loan. At the time of execution of the sale deed itself, the petitioner had informed them that she will be responsible for the said loan and she will be discharging the liability. So far, the bank has not sent any notice to any of the purchasers including the first respondent. The first respondent with ulterior motive filed a complaint against the petitioner on 13-12-1996 before the Judicial First Class Magistrate's Court, Sulthan Bathery as C.C.No. 217 of 1997 under Section 420 of the Indian Penal Code. In the said complaint, it is stated that prior documents of the property of 70 cents purchased by the first respondent for an amount of Rs. 28,000/- was not handed over to her at the time of sale and on the date of sale, the property was mortgaged to the State Bank of India, Kainatty Branch by deposit of title deeds of the property. The petitioner had suppressed the said fact and that her intent was to cheat the complainant. The first respondent had sustained mental agony and loss. An earlier complaint filed before the Magistrate's Court which was sent for investigation to the Konichira Police was subsequently referred by the police. The refer notice was received by the first respondent on 10-12-1996.

(3.) It is submitted that prior to the filing of the present complaint, the first respondent had sent a registered lawyer notice. In the said notice, the first respondent had only demanded the petitioner to close the loan account and hand over the prior documents within 7 days of the receipt of the notice, failing which she will initiate appropriate legal action. The loan from the bank had no connection with the sale of the property to the first respondent. Further, the petitioner had closed the loan account on 8-10-1996, that is, prior to the notice. The prior documents also have been handed over to the first respondent. For the registered notice sent to the petitioner, she had sent a reply notice dated 17-10-1996 through her Advocate. The said notice was acknowledged by the Advocate (Smt. V. M. Cicily) of the first respondent. The allegation in the complaint as well as in the notice that she had deposited the original title deed in respect of the property in the bank is not correct. Along with the petition the petitioner has produced true photostat copy of the certificate issued by the Kainatty Branch of the State Bank of India dated 15-9-1997 which would show that Document No. 1995/1974 was the prior document which had not been pledged with the bank and availed any loan by depositing the title deed and the loan transaction with the bank was closed as early as on 8-10-1996. The present complaint has been filed by the first respondent due to personal vengeance and animosity. The first respondent had also filed complaints against the petitioner before the Taluk Sabha, D.E.O. and the District Collector. The petitioner is a School Teacher and in order to harass and humiliate her the present petition is filed without any bona fides and with ulterior motive. As per the allegations raised in the complaint, it can be seen that no criminal offence is committed by the petitioner and that transaction between the petitioner and the first respondent if at all is of a civil nature. It is an abuse of the process of law. Hence it is prayed that prosecution initiated against the petitioner in C. C. No. 217 of 1997 pending before the Judicial Magistrate of First Class, Sulthan Bathery be quashed.