JOSHI DOMINI Vs. STATE OF KERALA

JUDGEMENT

(1.) IN this petition under Section 482 of the Code of Criminal Procedure, petitioner, who is the second accused in C.C. 280 of 2011 on the file of the Judicial Magistrate of the First Class, Chalakudy, seeks an order to quash Annexure C final report accusing him for offence under Sections 120(b) (sic), 405 and 406 of the Indian Penal Code with a plea that even going by the averments in the final report, no offence is made out against him to send him for trial. Column No. (16) of Annexure C reads as follows: (Malayalam Language)

(2.) GOING by the above report I find that this is a clear case of breach of an agreement for sale. There is no case of entrustment of any property to the petitioner, who is the second accused. Therefore, there is no trust or breach of trust to make out an offence under Section 405 or 406 I.P.C. as against the petitioner. Of course, the defacto complainant has got a case that gift deed was executed in favour of the petitioner by the first accused who is none other than his brother as part of the criminal conspiracy. According to the petitioner, he is working abroad and he was not even aware of the settlement deed executed in his favour by the first accused. Even if it is assumed that the petitioner was aware of the execution of the settlement deed, that would not amount to any offence under Section 120B because the so called conspiracy is for committing breach of trust. So long as there is no breach of trust and there is only breach of an agreement for sale, which is not penal, no offence under Section 120B is made out. In the above circumstance, I find that all proceedings in pursuance to Annexure C final report are only abuse of process and are liable to be quashed in exercise of the powers vested in this Court under Section 482 of the Code of Criminal Procedure.