ALIKUNJI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are accused Nos.1, 2, 4 and 7 to 16 in a prosecution under Sec.420 read with Sec.149 of the IPC. They along with the co-accused i.e., Accused 3, 5, 6 and 17 are the legal heirs of the deceased Kochu Moideen. The said Kochu Moideen expired in 1985. The petitioners along with other legal heirs inherited the estate of the said Kochu Moideen. In 1998 the rights of the legal heirs were assigned to various persons including the de facto complainant. A portion of the estate was conveyed to the de facto complainant who is arrayed as the 3rd respondent in this petition. He has been served; but there is no representation on his behalf. The 3rd respondent, who took assignment of the rights of the legal heirs including the petitioners as per a sale deed executed in 1998, had filed a complaint before the learned Magistrate which was referred to the police under Sec.156(3) of the Cr.P.C. After investigation of that crime, final report was filed and cognizance was taken against all the accused CRL.M.C.NO. 2597 OF 2006 -: 2 :- including the petitioners herein under Sec.420 read with Sec.149 of the IPC. That sale deed was executed by the 1st respondent as the holder of the Power-of-Attorney on behalf of the legal heirs under different instruments of Power-of-Attorney. The grievance of the 3rd respondent - de facto complainant is that the share of accused 5 and 6 over the property assigned to him was the subject matter in O.S.No.1/96 and there was an attachment of the rights of accused 5 and 6 in respect of the property conveyed to him as per an order passed in O.S.No.1/96. The attachment was allegedly made in the suit claiming amounts due under some other debt.

(2.) The petitioners have come to this Court with a prayer to invoke the powers under Sec.482 of the Cr.P.C. The learned counsel contends that there is no semblance of an allegation or material on which it can be assumed that the petitioners herein had fraudulently misrepresented or suppressed any information to induce the de facto complainant/the 3rd respondent to enter into a transaction of sale. Even admittedly, the rights of the petitioners which they conveyed to the 3rd respondent through their Power-of-Attorney holder were not, in any way, under any cloud. The learned counsel contends that on the materials available, it is impossible even to entertain a suspicion that the petitioners had knowledge of the alleged attachment in O.S.No.1/96 and that they had wilfully and fraudulent intention misrepresented or done any act to induce the third respondent to enter into the transaction.

(3.) As the contention appeared to be impressive, the learned Public Prosecutor was directed to take instructions and point out to the court specifically the circumstances, if any, which can indicate that the petitioners were aware of the attachment of the rights of accused 5 and 6 in O.S.No.1/96. The learned Public Prosecutor, after perusing the records, fairly submits that he is unable to point out any specific circumstances against the contention urged by the learned counsel for the petitioners.