Aneep Kumar s/o Gopi v. Jose s/o Poulose and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941** ## **Crl.MC.No. 2637 of 2014** **AGAINST CC 2428/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS, IRINJALAKUDA** ## **PETITIONER/ACCUSED NO.2:** **ANEEP KUMAR S/O.GOPI, KIZHUVAKKAL HOUSE, POOTHOLE S.N.PARK DESOM, ARAMATTUKARA VILLAGE, THRISSUR DISTRICT.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN** ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE:** - **1 JOSE S/O.POULOSE, MOOTHEDAM HOUSE, KODALY DESOM, MATTATHUR VILLAGE, THRISSUR - 680 684.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM 682 031.** **BY ADV. SRI.T.N.MANOJ FOR R1 PUBLIC PROSECUTOR SMT.K.K.SHEEBA FOR R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.04.2019 THE COURT ON 20.05.2019 PASSED THE FOLLOWING:** Crl.M.C.No.2637/2014 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.2637 of 2014 -------------------------------------------Dated this the 20[th] day of May, 2019 ## **O R D E R** The petitioner is the second accused in the case C.C.No.2428/2012 pending on the file of the Court of the Judicial First Class Magistrate, Irinjalakkuda. The allegation against him is that he committed the offences punishable under Sections 406 and 420 read with 34 I.P.C. The petition is filed by him to quash Annexure-A charge sheet and all further proceedings based on it pending against him in the court, 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 prosecution case is as follows: The first accused Shabeer Ali was conducting an institution by name 'On Board Aviation Academy' offering courses to get jobs as Air Hostess, Cabin Crew, Airport Ground Handling etc. The institution Crl.M.C.No.2637/2014 3 conducted by the first accused had no licence or permission obtained from the government. But, the accused made the students to believe that it was an institution recognised by the government and that the institution had got tie-up with airports at Dubai, Singapore and Malaysia and that practical training would be given at the Cochin International Airport at Nedumbassery for one day every week and also at the airports in Dubai, Singapore and Malaysia and after completing the course, the students would be given job in any of those airports. The first accused obtained an amount of Rs.63,500/- from the daughter of the de facto complainant. He also obtained a total amount of Rs.57,62,500/- from other students. He took 26 students to Malaysia promising that they would be given practical training at the airport. But, leaving the students there, he left Malaysia. The first accused did not return the amount obtained by him from the students. Therefore, the accused have committed the offences punishable under Sections 406 and 420 read with 34 I.P.C. 3. The case against the accused was registered on the basis of the first information statement given to the police by the Crl.M.C.No.2637/2014 4 first respondent, who is the father of a student by name Amrutha. After completing the investigation of the case, the police filed charge sheet against the accused for the offences mentioned above. Learned Magistrate took cognizance of the offences and the case was taken on file as C.C.No.2428/2012. 4. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the first respondent. 5. Learned counsel for the petitioner contended that there is absolutely no material produced by the prosecution against the petitioner. Learned counsel contended that there is nothing to show that the petitioner had, in any manner, induced any student to part with any amount. Learned counsel would submit that the petitioner was only a tutor in the institution conducted by the first accused and that he had no role in the administration and management of the institution. 6. The allegation against the petitioner is that he committed the offences punishable under Sections 406 and 420 read with 34 I.P.C. The ingredients of the offence of cheating Crl.M.C.No.2637/2014 5 punishable under Section 420 I.P.C shall be examined in this context. 7. Section 415 of the Indian Penal Code reads as follows: _"415. Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"._ 8. The ingredients to constitute an 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 induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or (b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) Crl.M.C.No.2637/2014 6 (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. A fraudulent or dishonest inducement is an essential ingredient of the offence of cheating. 9. Section 420 of the Indian Penal Code reads as follows: _"420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."_ 10. The ingredients to constitute an offence under Section 420 I.P.C are the following: (i) a person must commit the offence of cheating under Section 415 I.P.C; and (ii) the person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into Crl.M.C.No.2637/2014 7 valuable security. Cheating is an essential ingredient for an act to constitute the offence punishable under Section 420 I.P.C. 11. Admittedly, the institution involved was conducted by the first accused. There is no allegation against the petitioner that he had any role in the management or administration of the institution conducted by the first accused. He was a tutor/instructor in the institution. There is also no allegation that the petitioner had obtained money from any student. 12. However, the crucial question is whether there is material to show that the petitioner had dishonestly induced any student to part with money to the first accused or to join the institution. Learned counsel for the petitioner would submit that none of the witnesses has given any statement to the police to the effect that the petitioner had made any such inducement. This submission appears to be not correct. I have perused the copy of the charge sheet filed in the case and also the copy of the statements of the witnesses recorded by the police. Atleast three witnesses, by name Farris (CW9), Arjun (CW18) and Sujisha, have given statement to the police regarding the Crl.M.C.No.2637/2014 8 inducement made by the petitioner to join the institution run by the first accused. The witness Farris has given statement to the police that the petitioner told him that the institution had licence and that he could join the institution without any hesitation. The witness Arjun has given statement to the police that the petitioner told him that the institution had licence and that training would be given in the airports for a month if he joined the institution. The witness Sujisha has given statement to the police that the petitioner told her that the institution has got licence. In these circumstances, it cannot be found that there is absolutely no material against the petitioner produced by the prosecution to prove that he has committed an offence punishable under Section 420 I.P.C. The question whether the petitioner had any dishonest intention or not in making the aforesaid representation to the students is a matter of evidence. It is not a matter to be decided by this Court in a petition filed under Section 482 of the Code. 13. It is stated in the petition that the petitioner joined the institution run by the first accused only in May, 2011 as an Crl.M.C.No.2637/2014 9 Instructor but the first accused had collected amounts from students by April, 2011 and therefore, the prosecution case against the petitioner is not true. In a petition filed under Section 482 of the Code, such pleas of defence made by the accused cannot be considered. 14. Of course, there is no allegation against the petitioner that he received money from any student. Therefore, it is doubtful whether the offence punishable under Section 406 I.P.C would lie against him. The case is at the trial stage and this is a plea which he can raise before the trial court. 15. Once final report is submitted under Section 173 of the Code, if the accused is aggrieved, normally, he shall be relegated to approach the Magistrate for discharge (See **Sau Saraswatibai** **v. Lalitabai (2019 (1) KLD 650 (SC)** . At this juncture, it is to be noted that the trial court had framed charge against both accused in the case for the offences punishable under Sections 406 and 420 read with 34 I.P.C even before the filing of this petition under under Section 482 of the Code. The petitioner has no case that he had filed any application for discharge under Crl.M.C.No.2637/2014 10 Section 239 of the Code. He also did not challenge the charge framed against him by the trial court. ## 16. In **Mohit alias Sonu v. State of U.P : AIR 2013 SC 2248** , the Apex Court has held as follows: _"So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged"._ ## 17. In **Padal Venkata Rama Reddy alias Ramu v. Kovvuri Satyanarayana Reddy: (2011) 12 SCC 437** , it has been held as follows: _“It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a_ Crl.M.C.No.2637/2014 11 _situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy”._ 18. True, nothing in the Code circumscribes or limits the power of this Court under Section 482 of the Code. But, when the accused approaches this Court with a petition under Section 482 of the Code to quash the prosecution against him, without availing the usual remedy provided under the Code, he must satisfy this Court 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. He must show that the proceedings against him are nothing but a weapon of harassment or persecution. There is no such situation here. There is no merit in this petition and it is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/17/05/2019 Crl.M.C.No.2637/2014 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE P1 ANNEXURE-A: TRUE COPY OF THE CHARGE SHEET IN C.C.NO.2428 OF 2012 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, IRINJALAKUDA.** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE