Criminal proceedings should not be used to settle civil disputes, and the sale of properties covered by a power of attorney does not necessarily constitute criminal breach of trust or cheating.

ORDER :

1. Two sale deeds executed by the petitioners have given rise to two criminal cases, both of which are being challenged in these petitions filed under section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’). Since the material averments, the nature of allegations and the parties are identical, the cases are being disposed of by this common order.

2. Petitioners are the accused in C.C. No. 1093 of 2018 and C.C. No. 1092 of 2018, both on the files of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The criminal cases arose from complaints filed by the first respondent on 07/02/2017 before the Thiruvananthapuram City Police Commissioner, on the basis of which FIR Nos. 306/2017 and 283/2017 were lodged. Pursuant to the investigation, two separate final reports were filed on 25/04/2018, which are the subject matters of this dispute.

3. The final reports allege that the accused had committed criminal breach of trust and cheating by selling 8 cents of land in Survey No. 1283 as per sale deed No. 3633/2012 for an amount of Rs.22,40,000/- and another 6 cents as per sale deed No. 3527/2012 for an amount of Rs.10,60,000/- , despite having executed a power of attorney in favour of the defacto complainant relating to the same properties, and made unlawful gain to themselves and unlawful loss to the defacto complainant and thereby committed the offences under sections 406 and 420 read with section 34 of IPC. Except for the change in the sale deed numbers and the dates on which those deeds were executed, the allegations in both final reports indicate that the petitioners had, after issuing a power of attorney to the defacto complainant, sold the two properties included in the power of attorney to other persons, causing loss to the defacto complainant.

4. In order to appreciate the contentions advanced by the counsel for the respective parties, it is necessary to mention that petitioners 1 to 3 claim to be the absolute owners of an extent of 15.88 acres of land comprised in various survey numbers. After the petitioners decided to sell 13.25 acres of their properties, the defacto complainant came forward to purchase the property. An agreement was executed on 06/03/1992 for the sale of the properties at a rate of Rs.9,000/- per cent. The agreement stipulated the sale to be completed within 12 months, and an advance amount of Rs.6,50,000/- was paid. However, the sale was not effected within the stipulated period as the defacto complainant did not pay the balance consideration within time. Later, a general power of attorney was executed by petitioners 1 to 3 in favour of the defacto complainant as document No. 1652 dated 07/06/1994 of the Sub Registry Office, Thiruvananthapuram, in respect of an extent of 13.08 acres scheduled as item Nos.1, 2 and 3 to the power of attorney.

5. Petitioners allege that the properties sold by them as per sale deed Nos. 3633/2012 and 3527/2012 are not covered by the power of attorney. The defacto complainant, on the other hand, alleges that the sales were effected at a time when the power of attorney was in existence, and therefore, they have been cheated and even sustained losses. The defacto complainant had, in the meanwhile, mortgaged the properties on the basis of the power of attorney and obtained a loan from the Canara Bank, Thiruvananthapuram. It is thus alleged that, during the existence of the mortgage, the petitioners had executed the sale deed, and thereby, the defacto complainant sustained further losses.

6. Sri. Abraham Mathew Vettoor, the learned counsel for the petitioners, contended that, even if the entire allegations in the final report are assumed to be correct, still, no offence under sections 406 and 420 of IPC are made out. It was further submitted that the attempt of the defacto complainant was to convert a civil dispute into a criminal case and to compel the petitioners to settle the civil dispute. He also submitted that the property sold by petitioners