Hamza v. State of Kerala, Crl.M.C.No.3299 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 14TH DAY OF MARCH 2017/23RD PHALGUNA, 1938** **Crl.MC.No. 3299 of 2013 () ---------------------------** ## **CRIME NO.75/2013 OF KADAMPUZHA POLICE STATION, MALAPPURAM DISTRICT** **PETITIONER(S)/ACCUSED: -------------------------------------** **HAMZA, AGED 49 YEARS, S/O MUHAMEDKUTTY, MATTIL HOUSE, PARAPPUR, KADAMPUZHA P.O., MALAPPURAM DISTRICT, PIN 676 553.** **BY ADVS.SRI.M.I. JOHNSON SMT.N.DEEPA** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANTS:** **---------------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE, KADAMPUZHA POLICE STATION, MALAPPURAM DISTRICT.** **2. SAIDALAVI @ SAIDALIKUTT, AGED 51 YEARS, S/O.KUNJAHAMED HAJI, ALUNGAL HOUSE, THOZHANNUR, RANDATHANI P.O., MALAPPURAM DISTRICT, PIN: 676 510.** **R2 BY ADV. SRI.JACOB SEBASTIAN R1 BY PUBLIC PROSECUTOR SRI. ALEX M THOMBRA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 3299 of 2013 () ------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES ----------------------------------------ANNEXURE -1: TRUE COPY OF THE FIR NO.75 OF 2013 DATED 27/07/2013 OF KADAMBUZHA POLICE STATION. ANNEXURE -2: TRUE COPY OF THE LEASE AGREEMENT DATED 30/01/2013 EXECUTED IN BETWEEN THE PETITIONER AND THE DE FACTO COMPLAINANT. ANNEXURE -3: TRUE COPY OF THE LAWYER NOTICE DATED 19/7/2013 SENT TO THE PETITIONER ANNEXURE -4: TRUE COPY OF THE REPLY NOTICE DATED 30/7/2013 SENT TO THE LAWYER OF DEF ACTO COMPLAINANT.** **RESPONDENT(S)' ANNEXURES -------------------------------------------NIL** **//True Copy//** **P.A. To Judge** **Bb** ## **RAJA VIJAYARAGHAVAN V, J. --------------------------------Crl.M.C.No.3299 of 2013 ......................................................... Dated this, the 14[th] day of March, 2017.** ## **O R D E R** - 1.The petitioner is the accused in Crime No.75 of 2013 of the Kadampuzha Police Station registered at the instance of the 2[nd] respondent herein alleging offences punishable under Section 406 and 420 of the IPC. In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner seeks to quash Annexure-A1 FIR on the ground that the continuance of criminal proceeding is an abuse of process. - 2.To appreciate the contentions advanced, a brief reference to the allegations raised in the FI Statement will be apposite. - 3.According to the 2[nd] respondent, he is engaged in running laterite quarries. On 30.1.2013, he entered into an agreement with the petitioner, on the strength of which he was permitted to extract laterite from an Crl.M.C.No.3299 of 2013 : 2 : item of property having an extent of 35 cents belonging to the petitioner. Consideration was fixed at Rs.35,000/- per cent and an advance amount of Rs.6,00,000/- was handed over to the petitioner. The relevant revenue records were handed over to the 2[nd] respondent for securing a quarrying permit. When the petitioner was asked to secure consent from the neighboring property owners he vacillated and asked for time till the rain sets in. When he approached the petitioner later he raised the ante and demanded a sum of Rs.50,000/- per cent. This demand was rejected by the 2[nd] respondent. Thereafter, the petitioner is alleged to have given a false complaint before the mining authorities alleging illegal quarrying by the 2[nd] respondent. Based on the complaint, the mining officers visited the quarry and imposed a fine of Rs.30,000/-. According to the 2[nd] respondent, the petitioner with intent to cheat the 2[nd] respondent had entered into an agreement and accepted a sum of Rs.6,00,000/- and Crl.M.C.No.3299 of 2013 : 3 : thereafter went back on his promise. As a result of the acts of the petitioner, the 2[nd] respondent sustained a loss of Rs.10 lakhs. Raising the above allegations, a statement was furnished based on which Annexure-1 Crime was registered . - 4.Heard the learned counsel appearing for the petitioner, the 2[nd] respondent and also the learned Public Prosecutor. I have gone through the materials on record as well. - 5.The learned counsel appearing for the petitioner relying on a catena of binding precedents would contend that the dispute between the parties is essentially civil in nature which has been given the cloak of a criminal offence in disguise. - 6.The counsel appearing for the 2[nd] respondent would counter the submissions and would urge that the investigation has just commenced and no extraordinary reason is made out to quash the proceedings at the threshold stage itself. Crl.M.C.No.3299 of 2013 : 4 : 7.Having gone through the nature of allegations raised against the petitioner, it is evident that an agreement was entered into between the parties wherein mutual rights, liabilities and obligations were fixed. Certain sums were handed over by the 2[nd] respondent to the petitioner to enable him to carry out quarrying work in the property of the petitioner. It appears that objection was raised by some of the neighbours against the quarrying activity. The 2[nd] respondent approached the petitioner as demanded him to quell the complaints raised by the neighbours. It is also alleged that against the activities of the 2[nd] respondent, which was found to be illegal , the authorities have imposed penalty. - 8.The question is whether the above allegations would attract the penal provisions as alleged . - 9.For the purpose of constituting an offence for criminal breach of trust and/or cheating, the ingredients thereof as contained in Sections 405 and 415 respectively must be borne out from the bare allegations. The terms of Crl.M.C.No.3299 of 2013 : 5 : Section 405 are very wide. It applies to one who is in any manner entrusted with property or dominion over property. The section does not require that the trust should be in furtherance of any lawful object. The section provides _inter alia_ that if such a person dishonestly misappropriates or converts to his own use property entrusted to him he commits criminal breach of trust. In the instant case, an agreement was entered into between the parties and the allegation is that the terms were violated. Whether it was on rightful grounds or whether the 2[nd] respondent is entitled to damages etc., are the concern of the Civil Court, which aspect can be determined only after recording the evidence adduced by the parties. There is no question of the offence under Section 406 of the offence being attracted in the instant case . 10.Insofar cheating is concerned, the offence cannot be said to be made out unless the following ingredients are satisfied: Crl.M.C.No.3299 of 2013 : 6 : i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.' 11.For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out. A guilty intention is an essential ingredient of the offence of cheating. In other words, 'mens rea' on the part of the accused must be established before he can be convicted of an offence of cheating. Crl.M.C.No.3299 of 2013 : 7 : 12.Testing the facts of the instant case on the basis of the above settled legal position, I am of the view that the ingredients of the offence under section 406 or section 420 is not made out. Even if it is admitted that an agreement was entered into and that the petitioner had reneged his promise at some stage, in the facts of the instant case, it will be well nigh impossible to hold that the petitioner had guilty intent at the inception. There are no materials attracting the ingredients of Sections 406 or 420 of the IPC. 13.In **Madhavrao Jiwajirao Scindia and Another v. Sambhajirao Chadrojirao Angre and Others** (AIR 1988 SC 709) the Supreme Court held thus : The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique Crl.M.C.No.3299 of 2013 : 8 : purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 14.I have no hesitation in my mind that the allegations raised against the petitioner, even if admitted as true and taken in its entirety, will not make out the offence alleged. The continuance of the proceedings is an abuse of process and it is only just and proper that the same be axed in the interest of justice. This petition will stand allowed. Annexure A1 FIR in Crime No.75 of 2013 of the Kadampuzha Police Station and all further proceedings pursuant thereto shall stand quashed . ## **RAJA VIJAYARAGHAVAN V, JUDGE.** Bb/16/03/2017 _[True copy] P.A to Judge_