AISWARIA V.K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940** ## **Crl.MC.No. 5348 of 2017** **AGAINST THE PROCEEDINGS IN CC 1533/2017 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS (TEMPORARY), THIRUVANANTHAPURAM** **CRIME NO. 364/2017 OF Valiyathura Police Station, Thiruvananthapuram** ## **PETITIONER/3RD ACCUSED:** **AISWARIA V.K., AGED 32, W/O.SATHEESH KUMAR,RESIDING AT G3, CB APARTMENTS, PERINGATTU ROAD, NEAR YMCA,PALARIVATTOM, ERNAKULAM. BY ADV. SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENTS / DE FACTO COMPLAINANT & S TATE:** |**1**|**BRIJITH**| |---|---| ||**AGED 57, D/O.MAGDELENA, TC. 71/413,**| ||**PUTHUVAL PURAYIDAM, NEAR VALIYATHURA BRIDGE,**| ||**VALIYATHURA WARD, MUTTATHARA VILLAGE,**| ||**THIRUVNANTHAPURAM DISTRICT, PIN 695008.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682031**| ||**BY ADV. SRI.R.NIKHIL**| ||**SRI RAMESH CHAND PP**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 5348 of 2017** **2** ## **ORDER** The petitioner herein is the 3[rd] accused in C.C No.1533 of 2017 on the file of the Temporary Court of Judicial Magistrate of 1[st] Class, Thiruvananthapuram. The accused Nos. 1, 2 and 4 in the aforesaid case are the parents and brother of the petitioner herein. They face accusations of having committed offence punishable under Section 406, 420 r/w Section 34 of the IPC. 2. The petitioner has approached this Court seeking to quash the proceedings invoking the powers of this Court under Section 482 of the Code of Criminal Procedure ('the Code” for brevity). 3. The 1[st] respondent is the de facto complainant. As per the final report, the allegation is that the 1[st] accused, who is the mother of the petitioner herein, is an LIC agent. She approached the 1[st] respondent and persuaded her to purchase various policies of the Life Insurance Corporation. She states that she is having acquaintance with the 1[st] accused from the year 1992 onwards. She purchased policies in the name of her husband and son and used to make regular payments. The 1[st] accused and her husband used to come and collect the amount. They used to issue receipts till the year 2011. She further alleges that in the year 2010, she purchased policies in the name of **Crl.MC.No. 5348 of 2017** **3** her son and daughter-in-law. The accused, including the petitioner, used to come and collect the premium amount. She further alleges that when she discontinued payment in one of the policies, the accused Nos.1 and 2 approached her and persuaded her to continue with the payment. Later, she realised that she was deceived by the 1[st] accused. On these allegations, a complaint was lodged and the subject crime was registered. 4. The learned counsel appearing for the petitioner submitted that the petitioner has nothing to do with the acts committed by her mother. According to the learned counsel, the 1[st] accused is the LIC agent and even according to the 1[st] respondent, she was the one who had persuaded the de facto complainant to join the account. The only allegation against the petitioner is that on one or two occasions, she had collected the amount for and on behalf of her mother. According to the learned counsel, even if the version of the de facto complainant is accepted in its entirity, she has no case that the petitioner had induced her to deliver any property and that or that she had intentionally induced the de facto complainant to do or omitted to anything which he would not do or omit if he were not so deceived. In that view of the matter, the prosecution proceedings against the **Crl.MC.No. 5348 of 2017** **4** petitioner is a clear abuse of process. The learned counsel would further contend that the petitioner is a post graduate in Library and Information Science and she has undergone training in various institutes of higher learning including the Vikram Sarabhai Space Centre. She was working as an Assistant Librarian and Information Officer under the Spices Board. At no point of time, has she had an occasion to collect any sum by way of premium from the 1[st] respondent. According to the learned counsel, it is with malafide intent that the petitioner was roped in so as to force the accused to settle the dispute between the 1[st] accused and the 1[st] respondent. 5. Heard the learned Public Prosecutor and the learned counsel appearing for the 1[st] respondent. 6. I have considered the submissions advanced and have gone through the final report. From the statement of the 1[st] respondent, it is evident that it was the 1[st] accused, who, in her capacity as the LIC agent, had induced the 1[st] respondent to purchase policies from the Life Insurance Corporation. Insofar as the petitioner herein is concerned, the allegation is that she had collected amounts from the 1[st] respondent as directed by her mother. The specific case of the petitioner is that she had no occasion to approach the 1[st] respondent **Crl.MC.No. 5348 of 2017** **5** demanding money towards premium. The certificates produced by her would reveal that she has been pursuing her education and has underwent training in reputed institutions. 7. The essential ingredients to attract the offence of cheating are as follows: - (i) there should be fraudulent or dishonest inducement of a person by deceiving him, - (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or - (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and - (iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 8. To constitute criminal breach of trust as defined under Section 405 of the IPC, there must be prima facie allegations which should reveal that : - (i) A person was entrusted with property or with any dominion over property; - (ii) that the person so entrusted; - (a) dishonestly misappropriates or converts that property to his own use: or **Crl.MC.No. 5348 of 2017** **6** - (b) dishonestly uses or disposes of that property or willfully suffers any other person to do so in violation of; - (i) any direction of law proscribing the mode in which such trust is to be discharged: or - (ii) any legal contract made touching the discharge of such trust. 9. I have no doubt in my mind that in the nature of allegations levelled in the final report, the ingredients of the offence under section 420 and 406 of the IPC will not be made out against the petitioner. The 1[st] respondent has no case that the petitioner had fraudulently induced her or had deceived her in any manner. Merely because the mother of the petitioner committed any fraudulent act of inducement, criminal liability cannot be fastened on the petitioner. The mere act of collecting some money to be handed over to the mother cannot fasten the petitioner with criminal liability. I find considerable merit in the contention of the learned counsel that the petitioner being the only employed person in the family with a good educational background, she has been roped in as an accused to corner the 1[st] accused and to force her to settle the disputes. ## 10. In **State of Karnataka** v. **L. Muniswamy and others** [(1977) 2 SCC 699], a three-Judge Bench of the Apex Court referred **Crl.MC.No. 5348 of 2017** **7** to Section 482 of the Code and in paragraph 7 (pg. 703) of the Report, it was held as under: “7. …….. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” **Crl.MC.No. 5348 of 2017** **8** ## 11. In **G. Sagar Suri and another** v. **State of U.P. and** **others** [(2000) 2 SCC 636], the Apex Court held as under: “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 12. Having considered the facts and after perusing the records, I am of the view that the continuance of the proceedings against the petitioner would be nothing, but an abuse of the process of the Court. I am of the view that this is a fit case, wherein this Court will be justified in exercising its inherent powers under Section 482 of the Code to quash the proceedings against the petitioner. **Crl.MC.No. 5348 of 2017** **9** In the result, this petition will stand allowed. Annexure-II final report and all proceedings pursuant thereto against the petitioner in C.C.No. 1533 of 2017 on the file of Judicial Magistrate of First Class, (Temporary), Thiruvananthapuram, are quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** **//TRUE COPY// P.A. TO JUDGE** avs **Crl.MC.No. 5348 of 2017** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE FIRST INFORMATION REPORT DATED 01.03.2017 ALONG WITH THE STATEMENT OF THE DEFACTO COMPLAINANT.** **ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT DATED 05.07.2017.** **ANNEXURE III TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 09.08.2011.** - **ANNEXURE IV TRUE COPY OF THE CERTIFICATE ISSUED BY THE GROUP HEAD, VIKRAM SARABHAI SPACE CENTRE DATED 26.11.2010.** - **ANNEXURE V TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 08/05/2013.** - **ANNEXURE VI TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER DATED 25/04/2016.** - **ANNEXURE VII TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY GRANTS COMMISSION DATED 04/07/2016.** - **ANNEXURE VIII TRUE COPY OF THE JRF AWARD LETTER ISSUED BY THE UNIVERSITY GRANTS COMMISSION DATED 15/07/2016.** - **ANNEXURE IX TRUE COPY OF THE SERVICE CERTIFICATE ISSUED TO THE PETITIONER DATED 04/06/2016.** **ANNEXURE X TRUE COPY OF THE MEMORANDUM OF APPOINTMENT DATED 30/05/2016.** **ANNEXURE XI TRUE COPY OF THE EXTENSION ORDER DATED 09/02/2017.** **ANNEXURE XII TRUE COPY OF THE MEMORANDUM DATED 27.07.2017 ISSUED TO THE PETITIONER.** ## **RESPONDENTS' EXHIBITS:-NIL**