K.NAZEER Vs. K.P.MUHAMMED ASHRAF

JUDGEMENT

(1.) The petitioner is the accused in the case C.C.No.685/2017 on the file of the Court of the Judicial First Class Magistrate-I, Kannur. He seeks to quash the proceedings against him by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').

(2.) The case against the petitioner is based on Annexure 1 complaint filed against him by the first respondent. The material averments in the complaint can be stated as follows: The accused (the petitioner and K.Musthafa) made the complainant and his friend P.P.Abdul Salam to believe that the petitioner is the absolute owner in possession of the property having an extent of 29 cents. The second accused (K.M.Musthafa) is the power of attorney holder of the first accused (the petitioner) who had authority to execute agreement for sale and also sale deed in respect of the aforesaid property for and on behalf of the first accused. Believing the words of the accused, after verifying the title deeds and other documents, on 05.04.2011, the complainant and P.P.Abdul Salam entered into an agreement with them for sale of the aforesaid property. The consideration fixed was Rs.2,82,000/- per cent. The agreement had to be performed within six months. At the time of execution of the agreement, the complainant and P.P.Abdul Salam paid an amount of Rs.9,00,000/- to the second accused as advance towards sale consideration. Thereafter, on 02.06.2011, a further amount of Rs.5,00,000/- was paid to the second accused towards sale consideration. The period of the agreement was extended till 14.11.2012 as per the request of the accused. When the accused tried to delay the execution and registration of the sale deed and to assign the property to other persons, the complainant and P.P.Abdul Salam filed a suit for injunction as O.S.No.383/2012 in the Munsiff's Court, Kannur and obtained an order of injunction dated 10.09.2012 restraining the accused from alienating the property. Subsequently, the complainant and P.P.Abdul Salam filed a suit as O.S.No.679/2012 for specific performance of the agreement in the Sub Court, Kannur. In that suit also, they obtained an order of temporary injunction against the accused restraining them from alienating the property. Ignoring the orders of the court, the accused colluded together and dishonestly executed and registered sale deed No.4015/2012 of S.R.O Kannur on 17.11.2012 in favour of some other persons.

(3.) After recording the sworn statement of the complainant and conducting enquiry under Section 202 of the Code, the learned Magistrate issued process against the petitioner and K.Musthafa (the second accused) only for the offence punishable under Section 420 I.P.C and the case was taken on file as C.C.No.907/14.