Giji Daniel v. State of Kerala and Pradeep

Crl.M.C. No.2389 of 2013 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944 CRL.MC NO. 2389 OF 2013 IN C.C.NO. 127/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, ``` ## **`PATHANAMTHITTA`** ## **`PETITIONER/ACCUSED:`** ``` GIJI DANIEL S/O. DANIEL, AGED 42 YEARS, THANUGATTIL HOUSE, MANJANIKKARA, OMALLUR, PATHANAMTHITTA DISTRICT. BY ADV SRI.SOORAJ T.ELENJICKAL ``` ## **`RESPONDENTS/COMPLAINANT & DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA, THROUGH ASSISTANT SUB INSPECTOR OF POLICE, PATHANAMTHITTA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2PRADEEP S/O. CHANDRASEKHARA KURUP, KADUVAKUZHIYIL HOUSE, CHIRAYIRAMBU P.O., NEDUMBRAYAR THOTTAPUZHASSERY, THIRUVALLA. BY ADVS. SMT.ANNIE M.ABRAHAM SRI.T.K.BIJU MANJINIKARA ``` ## **`OTHER PRESENT:`** ``` SMT.M.K PUSHPALATHA, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No.2389 of 2013 2 ## **BECHU KURIAN THOMAS, J. ==================== Crl.M.C. No.2389 of 2013** **=====================** Dated this the 14[h] day of October, 2022 ## **ORDER** Petitioner is the accused in C.C.No.127/2012 on the files of the Chief Judicial Magistrate Court, Pathanamthitta. The final report alleges offence punishable under Section 420 of the Indian Penal Code. 2. A complaint was lodged by the 2[nd] respondent based upon which, FIR No.710/2012 was registered on 12.06.2012 before the Pathanamthitta Police Station. Pursuant to investigation, a final report was filed arraying the petitioner as an accused. The final report alleged that with an intention to make unlawful gain to the accused and unlawful loss to the defacto complainant, the accused entered into an agreement for sale on 7.11.2010, agreeing to sell 39 cents of land to the accused for a total consideration of Rs.49,00,000/- and received an advance of Rs.4,00,000/-. However, without refunding the advance amount and without selling the property to the defacto complainant, the accused sold the property to a third party and thereby committed the offence alleged. Crl.M.C. No.2389 of 2013 3 3. Shri. Rinoy Vincent, the learned counsel for the petitioner, on behalf of Adv.Sooraj.T.Elenjickal, submitted that even if the prosecution case is admitted in toto, the same does not make out an offence under Section 420 of the Indian Penal Code 1860. The learned counsel further submitted that a pure civil dispute has been converted into a criminal case for ulterior purposes and therefore, the proceedings against the petitioner are liable to be quashed. The learned counsel further submitted that, as per the decisions in _**State of Haryana v. Bhajan Lal** [1992 Supp (1) SCC 335]_ where the prosecution does not have any possibility of ending in a conviction, the proceedings can be quashed. The learned counsel also relied upon the decision in _**R.K.Vijayasarathy and Ors. Vs. Sudha Seetharam and Ors** [(2019)16 SCC 739],_ wherein it was held that when a matter is essentially of a civil nature and is given the cloak of a criminal offence and the ingredients required to constitute a criminal offence are not made out and the continuation of the proceeding will constitute an abuse of the process of Court. 4. Shri. T.K.Biju, the learned counsel for the 2nd respondent, on the other hand, contended that quashing of the final report is not warranted at this stage especially since, petitioner ought to face trial. It was further submitted that, even if there is a civil angle to the dispute, petitioner had clearly Crl.M.C. No.2389 of 2013 4 intended to cheat the defacto complainant and collected the advance from the 2[nd] respondent with that intention. The failure to return the advance when the balance consideration was not received is an indication of such an intent. According to the learned counsel, petitioner had evaded receiving the balance consideration and also evaded from returning the advance money received, thereby acting with a criminal intention. The learned counsel relied upon the decision in _**Mosiruddin Munshi v. Md.Siraj and Another [AIR 2014 SC 3352]**_ and contended that when the fraudulent or dishonest inducement is inherent in the conduct of the accused, even if the dispute may have a civil nature, a criminal offence will lie. The learned counsel also pointed out that, petitioner was not in station after executing the agreement and even till date he is not available, which is evident from the endorsement on the final report that the accused is absconding. 5. I have considered the rival contentions. 6. Admittedly, an agreement for sale dated 07.11.2010 was entered into between the parties, a copy of which is produced as Annexure III. The terms of the said agreement provided for payment of the balance consideration of Rs.45,00,000/- within a period of three months. In consideration of the agreement for sale, an advance of Rs.4,00,000/- was received by the 2[nd] Crl.M.C. No.2389 of 2013 5 respondent. The primary requirement under the agreement was for the defacto complainant to offer the balance sale consideration and demand execution of the sale deed. Admittedly no such demand was made and the 2[nd] respondent was not ready and willing to execute the sale deed after complying with the terms of the agreement. 7. No documents have been produced by 2[nd] respondent to indicate that he had ever demanded return of the advance sum or offered the balance sale consideration. Civil suit has also not been filed seeking return of the advance amount. Even though, the 2[nd] respondent alleges that he had repeatedly gone to the house of the defacto complainant, investigation had not collected any statements to that effect. There is also nothing on record to justify the claim that the defacto complainant was in possession of the balance sale consideration within the period stipulated in the agreement. 8. In view of the above, the failure to return the advance amount could have only given rise to a civil liability, especially since, there is nothing on record to show that, at the time of entering into the agreement for sale, 2[nd] respondent had an intention to cheat. In the absence of anything to indicate that there was an intention to cheat at the time of entering into the agreement of sale, merely because the advance amount received Crl.M.C. No.2389 of 2013 6 was not returned would not attract the offence of cheating, as contemplated under Section 420 of the Indian Penal Code. In a similar instance, in _**Murari Lal Gupta v. Gopi Singh [2005 (13) SCC 699],**_ the Supreme Court had quashed the proceedings, after holding that the proceeding is an abuse of the process of Court 9. As observed by the Hon’ble Supreme Court in a decision in _**R.K.Vijayasarathy and Ors. Vs. Sudha Seetharam and Ors. [(2019)16 SCC 739],**_ the criminal case has been filed solely for the purpose of compelling the petitioner to return the advance amount. Even though, the 2[nd] respondent has not returned the advance amount, petitioner had not initiated any civil proceedings. However, that by itself is not a reason to proceed criminally against the petitioner. 10. The decisions cited by the learned counsel for the respondent in _**Mosiruddin Munshi v. Md.Siraj and Another [AIR 2014 SC 3352[**_ is distinguishable in the sense that the said case related to quashing of an FIR where the Court observed that it was too premature a stage to quash the proceedings. In the instant case, pursuant to investigation, a final report has been filed and the prosecution has crystalized their case. 11. Therefore, I am of the view that no criminal liability can be fastened upon the petitioner on the basis of the allegations. 12. In such circumstances, prosecution of the petitioner is Crl.M.C. No.2389 of 2013 7 an abuse of the process of court and accordingly, Annexure II final report in C.C.No.127/12 on the files of the Chief Judicial Magistrate Court, Pathanamthitta, and all further proceedings pursuant thereto are quashed. This Crl.M.C is allowed as above. Sd/- **BECHU KURIAN THOMAS JUDGE** jka/14.10.22 Crl.M.C. No.2389 of 2013 8 ``` APPENDIX OF CRL.M.C 2389/2013 ``` |`PETITIONER’S`|`ANNEXURES`| |---|---| |`ANNEXURE I`|`TRUE COPY OF FIR ALONG WITH FIS IN CRIME`| ||`NO.710/2012 OF PATHANAMTHITTA POLICE`| ||`STATION.`| |`ANNEXURE II`|`CERTIFIED COPY OF THE FINAL REPORT DATED`| ||`13.08.2012 IN CRIME NO.710/12 OF`| ||`PATHANAMTHITTA POLICE STATION`| |`ANNEXURE III`|`CERTIFIED COPY OF THE AGREEMENT DATED`| ||`7th NOVEMBER 2010 PRODUCED AS DOCUMENT`| ||`ALONG WITH THE FINAL REPORT.`|