Crl.M.C.No.4407/2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** ## **Crl.MC.No.4407 OF 2016** **FIR NO.94/2016 OF Thrithala Police Station , Palakkad DISTRICT ON THE FILE OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, PATTAMBI OF PALAKKAD DISTRICT** ## **PETITIONERS/ACCUSED NOS.1 AND 2:** - **1 C.K.MUHAMMED HAJI S/O. SYED, AGED 56 YEARS, CHERIYARAMKOTTIL HOUSE, IZHUVATHIRUTHI AMSOM, BIYYAM P.O., PONNANI, MALAPPURAM DISTRICT, PIN CODE-679589.** - **2 ABDUL RASHEED MOULAVI S/O. ABDUL KHADER MUSALIAR, KALADY P.O., MUTHEER AMSOM, MELEMURI DESOM, PONNANI, MALAPPURAM DISTRICT, PIN CODE-679582.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS/STATE & COMPLAINANT** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 THE STATION HOUSE OFFICER THRITHALA POLICE STATION, PALAKKAD, PALAKKAD DISTRICT.** Crl.M.C.No.4407/2016 2 **ADDL. MUHAMMED ALI R3 AGED 49 YEARS S/O HAMSA,SHAN COMPLEX MATTANCHERY,NOW RESIDING AT AMBALATHVEETIL HOUSE,PADINJARANGADY P O PALAKKAD-679552 (IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 07.02.2017 IN CRL.M.A.1188/2017 IN CRL.M.C.4407/16)** **BY ADV. SRI.BENHUR JOSEPH MANAYANI BY ADV. SRI.JEEVAN MATHEW MANAYANI ADV.JOHNSON MANAYANI FOR ADDL.R3 SRI EC BINEESH-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.10.2019, THE COURT ON 06.11.2019 PASSED THE FOLLOWING:** Crl.M.C.No.4407/2016 3 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.4407 of 2016 --------------------------------------------Dated this the 6[th] day of November, 2019 ## **O R D E R** This petition is filed under Section 482 Cr.P.C to quash the proceedings against the petitioners in the case registered as Crime No. 94/2016 of Thrithala police station. 2. The petitioners are the accused in the aforesaid case registered under Section 420 read with 34 I.P.C. The case was registered on the basis of the first information statement given to the police by the third respondent/de facto complainant. The material averments in this statement are the following: On 10.08.2015, an agreement was entered into by the de facto complainant and the petitioners for sale of the property of a college in his favour. The de facto complainant paid an amount of Rs.63,75,000/- to the petitioners through cheques. As per the agreement, the petitioners had to sell the property to the de Crl.M.C.No.4407/2016 4 facto complainant within the date 30.11.2015. On 24.11.2015, the de facto complainant approached the petitioners with the cheque for the balance amount of sale consideration. Then the petitioners told him that they would not sell the property to him and thereby, they have cheated him. 3. The petitioners have prayed for quashing Annexure-A1 first information report on the ground that the transaction between the parties was purely civil in nature and that the allegations raised against them, even if accepted as true, will not constitute the ingredients of the offence of cheating under Section 415 I.P.C. 4. Heard counsel for the parties and the Public Prosecutor. 5. There is no allegation that the petitioners had dishonestly induced the de facto complainant to part with the money or deceived him. The de facto complainant and another person have subsequently instituted a suit for injunction against the petitioners in the Munsiff's Court concerned. Annexure-A2 is the copy of the plaint in that suit. The averments in the plaint reveal that the agreement was for sale of the land and the buildings and Crl.M.C.No.4407/2016 5 the college described in the schedule of the plaint. It is also stated in the plaint that possession of the property was handed over to the de facto complainant as per the agreement. The crux of the allegations against the petitioners in the first information statement is that they committed breach of the agreement. Therefore, the transaction between the parties was purely civil in nature (See **Nageshwar Prasad Singh v. Narayan Singh : AIR 1999 SC 1480** ). 6. Even if the money paid as advance is due to the de facto complainant from the petitioners, it cannot be found that they have deceived him and obtained money from him on the basis of such deception. The allegations raised against the petitioners, even if accepted as true, do not contain the elements of the offence of cheating. This is evidently a case where the dispute between the parties is of a civil nature and an attempt is made by the third respondent to settle the dispute with the petitioners by initiating criminal proceedings against them. 7. A mere failure to keep up promise cannot be presumed as an act leading to cheating. Distinction between mere breach of Crl.M.C.No.4407/2016 6 contract and cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused could be found guilty of the offence of cheating. On the other hand, if all that is alleged is that a representation or promise made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. Even if all the facts stated in the F.I.R are taken on their face value, no dishonest intention or inducement could be found or inferred. Criminalizing civil disputes, such as breach of contractual obligations, cannot be permitted. 8. In the aforesaid circumstances, I am satisfied that this is a fit case in which the power of this Court under Section 482 Crl.M.C.No.4407/2016 7 Cr.P.C shall be exercised to quash the proceedings against the petitioners. 9. Consequently, the petition is allowed and Annexure-A1 F.I.R in Crime No. 94/2016 of Thrithala police station and all proceedings against the petitioners pursuant thereto are hereby quashed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr05/11/2019 Crl.M.C.No.4407/2016 8 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE FIRST INFORMATION REPORT REGISTERED BY THE 2ND RESPONDENT ON 06-02-2016 ALONG WITH THE FIRST INFORMATION STATEMENT OF THE DE-FACTO COMPLAINANT.** ## **ANNEXURE A2** **TRUE COPY OF THE SUIT BEARING NUMBER O.S.NO. 93 OF 2016 FILED BY THE DEFACTO COMPLAINANT BEFORE THE HON'BLE MUNSIFF'S COURT, PATTAMBI.** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE