Crl.M.C.No.6326 of 2017 (Against the order/judgment in CC 253/2017 of J.M.F.C., Ranni)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939** **Crl.MC.No. 6326 of 2017** **( AGAINST THE ORDER/JUDGMENT IN CC 253/2017 of J.M.F.C.,RANNI** **CRIME NO. 1340/2016 OF RANNI POLICE STATION , PATHANAMTITTA)** ## **PETITIONER(S)/ACCUSED NO.1 AND 2** **1 SHINE PHILIP MATHEWS, S/O. PHILIPOSE MATHAI, AGED 32,MELETHUMALAYIL SHINE VILLA, KURIYANNOOR P.O, THOTTUPUZHASSERY VILLAGE, THIRUVALLA, PATHANAMTHITTA** **2 PHILIPOSE MATHAI, AGED 64 YEARS, S/O. MATHAI, MELETHUMALAYIL SHINE VILLA, KURIYANNOOR P.O, THOTTUPUZHASSERY VILLAGE, THIRUVALLA, PATHANAMTHITTA** **BY ADVS.SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENT(S)/STATE & DEFACTO COMPLAINANT:** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** **2. SARA SUSAN MAVELI, D/O. JOHN MAVELI, AGED 31 YEARS, MAVELI HOUSE, CHELLAKKADU P.O, PAVAZHANGADI KARA, RANNI, PATHANAMTHITTA 689 677** **R2 BY ADV. SRI.JACOB P.ALEX R2 BY ADV. SRI.JOSEPH P.ALEX R2 BY ADV. SRI.P.VIJAYA BHANU (SR.) R BY PUBLIC PROSECUTOR M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-02-2018, THE COURT ON 20/2/2018 PASSED THE FOLLOWING:** **Crl.MC.No. 6326 of 2017 ()** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **ANNEXURE 1 TRUE COPY OF THE F.I.R NO 1340/2016 DATED 29-07-2016 REGISTERED BY RANNY POLICE STATION** **ANNEXURE II CERTIFIED COPY OF THE CHARGE SHEET IN F.I.R 1340/2016 SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNY** **RESPONDENTS EXHIBITS:** **NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.6326 of 2017** - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of February, 2018 ## **O R D E R** The petitioners herein are the accused Nos. 1 and 2 in CC No.253/2017 of JFCM Court, Ranny, arising from FIR No.1340/2016 of Ranny Police station. 2. The first accused, who is the first petitioner herein, had married the second respondent herein on 28/5/2014. The second accused is the father of the first accused. It is alleged that, the first accused was impotent and due to it, the matrimonial relationship could not be consummated. The father of the defacto complainant had given huge amounts on various occasions before and after the marriage. totaling to Rs.50 Lakhs and gold weighing 1 k.g. It was stated that, the gold ornaments and the money were entrusted with accused 1 and 2. Subsequently, matrimonial disputes arose and ultimately parties decided to apply for divorce by mutual consent. An application for divorce by mutual consent was submitted as O.P.(Div.) No.123/2016. Along with the application, a memorandum of settlement voluntarily arrived at between the parties mutually Crl.M.C.No.6326/2017 2 undertaking the rights and obligations of each side was also produced. One of the clause in the settlement was to return the money within a specified time and another clause related to the return of the gold weighing 1 k.g. It is stated that, the accused withdrew from the above settlement and hence, the defacto complainant laid a complaint alleging that the first and the second accused resiled from the agreement and thereby committed offences punishable under sections 406,420 read with section 34 IPC. Annexure A1 is the complaint. It was referred to the police by the Magistrate invoking section 156(3) of Cr.PC.and after investigation, Annexure II chargesheet was laid. 3. The accused have approached this court with a prayer to quash the proceedings on the ground that, even if there is a breach of terms of the settlement, it is only a violation of the terms of the agreement and the remedy available is under civil law for breach of contract or for damages. According to the accused, criminal offences were not made out. It was contended that, section 10A of the Indian Divorce Act provides six months period to enable the parties to re-think and in appropriate cases, to resile from the joint application. It was further contended that, even the statute provides for re-thinking and opting out of the agreement. When such statutory option is exercised, it cannot be branded as commission of an offence punishable under IPC, it was contended. 4. Learned counsel for the petitioners relied on the decision Crl.M.C.No.6326/2017 3 of the Supreme Court in **State of Kerala v. Pareed Pillai(AIR 1972 SC 326)** to contend that, dishonest intention at the time of making the promise is essential. It was contended that, even admittedly the gold ornaments and the amounts were handed over immediately prior to or after the marriage. The allegation is regarding the breach of the agreement which took place much later. Hence, it cannot be said that there was a dishonest intention at the time of receiving the valuables or money, as the case may be, it was contended. 5. In **Hariprasad v Bishun Kumar (AIR 1974 SC 301** ), it was held that, even assuming that allegation in the complaint is to be true, a mere breach of contract cannot give rise to criminal prosecution. It was held that, there could be an allegation of dishonest or fraudulent intention at the time of parting with the money. It was contended that, The complaint did not indicate that the petitioner had induced the defacto complainant to pay the money or parted money with them. Learned counsel further relied on the decision reported in **Suresh Yadav v. Sheriffa (AIR 2008 SC 210)** to contend that, for the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making the promise or representation. 6. It was contended by the learned counsel for the petitioners, relying on the memorandum of understanding that, Crl.M.C.No.6326/2017 4 marriage was in the year 2014, whereas agreement was entered into on 2016. Breach of those terms in the agreement cannot be projected to contend that there was a fraudulent intention at the time of parting of the money with the accused. It was further contended that the amount or gold ornaments were not entrusted in trust. 7. Responding to the above contentions, learned senior counsel for the second respondent herein submitted that, the contention of the petitioners that section 10A of the Divorce Act enables opting out and it will not result in an offence and hence in this case opting out of the terms of the agreement will not attract any offence, is prima facie not sustainable. Opting out from the joint application filed under section 10A of the Divorce Act is a statutory option available to the parties and the period is provided for re-thinking. In the case at hand, the specific allegation is not regarding the opting out of application for divorce , but resiling from the terms of settlement which formed part of the application for divorce. Both are distinct and separate and, resiling from the settlement was alleged to be only one of the ingredient of cheating. 8. Evidently, the marriage between the parties, the matrimonial discord and the joint application for divorce, the agreement between the parties and that the accused resiled from the memorandum of settlement are not in dispute. The only 5 Crl.M.C.No.6326/2017 question that has to be considered is whether offences alleged are prima facie sustainable. 9. Learned senior counsel for the second respondent vehemently contended that, the complaint was not based on the breach of agreement . It was contended that, it was only one of the circumstances to establish allegation of cheating and breach of trust. Learned senior counsel took through the detailed complaint submitted by the defacto complainant. It was contended that, complaint was laid on a specific ground that the gold and money were entrusted to the accused in trust on a specific understanding that it will be kept in trust by them. It was also alleged that, accused 1 and 2 clearly knew that the first accused was impotent and he was incapable of consummating the marriage. Suppressing it, they entered into matrimonial relationship and thereby committed cheating. It was also stated that, culpable state of mind for cheating the defacto complainant was alleged to exist, even at the time of parting with the money. Reference to paragraphs 3 to 8 of the complaint clearly shows that, specific, clear and categoric averments regarding the ingredients to constitute offences under sections 420 and 406 are specifically alleged in the complaint. Every transaction is mentioned in detail and alleged that, such acts were done on a specific understanding of Trust. It was asserted that, valuables were entrusted in trust. It was also alleged that, the accused did not have an intention to comply with the conditions Crl.M.C.No.6326/2017 6 and their sole intention was to enter into a matrimonial relationship making false representation and to swindle money and gold. In paragraph 10 there is a specific averment that, facts of impotency of the accused was suppressed with the intention of cheating the defacto complainant. Factual allegations to constitute the ingredients of sections 420 and 406 IPC and also meeting of the mind to commit offence are narrated in the complaint. In this circumstance, it is a question of fact. Hence, I feel that, the contention set up by the petitioner herein that it was a mere case of breach of the terms of the agreement, is not sustainable and the matter needs to be considered on the basis of the evidence to be tendered. Hence, I feel that complaint cannot be quashed at the thresh-hold. Hence, I am inclined to dismiss the Crl.M.C,.reserving the right of the petitioners herein to raise all their contentions at the appropriate stage. With the above observations, the Crl.M.C.is dismissed. ## **-** Sd/ **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.6326/2017 7