Jayasree, D/o Saraswathy Amma v. State of Kerala and Sri Alexander

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **Crl.MC.No.1774 of 2018** **AGAINST THE ORDER/JUDGMENT IN CC NO.1170/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOTTARAKKARA** **CRIME NO.2441/2014 OF KOTTARAKKARA POLICE STATION, KOLLAM** ## **PETITIONER/2ND ACCUSED:** **JAYASREE, D/O. SARASWATHY AMMA, AGED 35 YEARS, KELAMATHUKONNA VEEDU, AMBALATHUMKALA P.O., NEDUVATHOOR VILLAGE, KOTTARAKKARA, KOLLAM.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KOTTARAKKARA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SRI. ALEXANDER, S/O. OOMMACHAN, MELOOTTUKOCHU PUTHEN VEEDU, PADINJARETHERUVU, KIZHAKKETHERUVU MURI, KIZHAKKETHERUVU P.O., KOTTARAKKARA, KOLLAM DISTRICT.** ## **BY ADV. SRI.ALEXANDER GEORGE** ## **OTHER PRESENT:** **SMT. M. K. PUSHPALATHA SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.1774 of 2018 ..2.. ## **ORDER** The 2[nd] accused in C.C.No. 1170 of 2016 on the file of the Judicial First Class Magistrate Court-I, Kottarakkara is before this Court seeking to quash the criminal proceedings initiated against her at the instance of the 2[nd] respondent herein. 2. Facts germane to the filing of the instant petition lie in a narrow compass. In his complaint lodged before the learned Magistrate, it is alleged that the accused approached the de facto complainant and offered to sell the property owned by the 1[st] accused for a total consideration of Rs.17 lakhs. An agreement for sale was entered into on 16.02.2013 by the 1[st] accused after receiving a sum of Rs. 6 lakhs by way of advance. It was agreed that the balance amount of Rs.11 lakhs would be handed over on 11.04.2013, on which day, the 1[st] accused agreed to execute and register the sale deed. On the stipulated day, a draft sale deed was prepared and when they went to the Sub Registrar’s office to register the sale deed, he realized that the property was under attachment over some earlier liability. The 1[st] accused undertook to clear the attachment within a period of two months and issued a receipt for the amounts received by her. However, she was not able to abide by her promise. Several mediators intervened and the 1[st] Crl.MC.No.1774 of 2018 **==> picture [30 x 7] intentionally omitted <==** accused finally agreed to issue a cheque for discharging the liability. However, when the cheque was presented, the same was dishonored. According to the de facto complainant, if it was not for the persuasion of the petitioner herein, he would not have entered into the agreement with the 1[st] accused. The complaint was referred to the police and Crime No.2441 of 2014 was registered. Later, after completion of investigation, final report was laid before the jurisdictional Magistrate. 3. Heard Sri.B.Mohan Lal, the learned counsel appearing for the petitioner, Sri.Alexander George, the learned counsel appearing for the 2[nd] respondent and also the learned Senior Public Prosecutor. 4. Sri.B.Mohan Lal would submit that the allegations in the final report, even if it is admitted as such, will not make out any offence against the petitioner herein. According to the learned counsel, the property belonged to the 1[st] accused, the agreement for sale was executed by her, the amounts were received by her from the de facto complainant and when the sale deed was not able to be registered, a cheque was also issued by her. The petitioner herein does not come into the picture at any point of time, contends the learned counsel. 5. Sri.Alexander George, on the other hand, would Crl.MC.No.1774 of 2018 **==> picture [30 x 7] intentionally omitted <==** vehemently oppose the prayer. It is submitted that the accused are close friends and associates and it was the petitioner herein, who had introduced the 1[st] accused to the de facto complainant. Though the transaction was with the 1[st] accused, if it was not for the persuasion of the petitioner herein, he would not have entered into the agreement, contends the learned counsel. 6. I have considered the submissions advanced and have gone through the complaint filed by the de facto complainant and also the final report laid by the police. 7. The records would show that it was on 16.02.2013 that an agreement was entered into between the 2[nd] respondent and the 1[st] accused. Two persons have been cited as witnesses, but the name of the petitioner herein does not find a place. On 11.04.2013, the 2[nd] respondent realised that the property in dispute is under an earlier attachment. The registration of the sale deed was delayed. On the same day itself, Annexure-A7 receipt was issued by the 1[st] accused admitting the receipt of Rs.17 lakhs and undertook to clear off the attachment within a period of two months. It is thereafter that the cheque was presented. When it was dishonoured, Annexure-A10 legal notice was issued by the de facto complainant to the 1[st] accused. The petitioner does not come into the picture at any point of time. Except for a vague allegation in the complaint Crl.MC.No.1774 of 2018 ..5.. that it was based on the persuasion of the petitioner that he had entered into the agreement, none of the records reveals the involvement of the petitioner. 8. Now the question is, in the facts and circumstances, the offence of cheating as alleged in the final report is made out. Section 415 of the Indian Penal Code reads thus: “Section 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”.” 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 deceived 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 deceived should be intentionally induced to do or to omit to do anything which he would not do or omit if he Crl.MC.No.1774 of 2018 ..6.. were not so deceived; and iii) in cases covered by (ii) (b) above, the act of omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.” 9. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person, who dishonestly induces another person to deliver any property, is liable for the offence of cheating. Section 420 of the IPC reads thus: “Section 420. Cheating and dishonestly inducing deliver 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 to 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.” The ingredients to constitute an offence under Section 420 are as follows: i) A person must commit the offence of cheating under Section 415; and ii) The person cheated must be dishonestly induced to - (a) deliver property to any person; or - (b) make, alter or destroy valuable security Crl.MC.No.1774 of 2018 ..7.. or anything signed or sealed and capable of being converted into valuable security.” 10. In other words, cheating is an essential ingredient for an act to constitute an offence under Section 420 of the IPC. Only a person, who dishonestly induces another person to deliver any property is liable for the offence of cheating. In the present case, looking at the allegations in the complaint on the face of it, I am of the view that the ingredients of the offence are not made out as against the petitioner. 11. 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 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 Crl.MC.No.1774 of 2018 **==> picture [30 x 7] intentionally omitted <==** even though it may be at a preliminary stage. (See **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chadrojirao Angre and Ors.** [AIR 1988 SC 709]; **Prof. R.K. Vijayasarathy v. Sudha Seetharam** [2019 (1) KLD 532]. 12. Having considered the entire facts and in the light of the above precedents, I am of the view that this is one of those rare and exceptional cases, wherein this Court will be justified in terminating the criminal proceedings by invoking the powers under Section 482 of the Code. In the result, this petition is allowed. Annexure-A2 final report and all further proceedings pursuant thereto against the petitioners now pending as CC No. 1170 of 2016 on the file of the Judicial First Class Magistrate Court-I, Kottarakkara are quashed. SD/- ## **RAJA VIJAYARAGHAVAN V., JUDGE** //TRUE COPY// P.A.TO JUDGE Bka/21.06.2019 Crl.MC.No.1774 of 2018 ..9.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE TRUE CERTIFIED COPY OF THE FIR IN CRIME NO. 2441/2014 OF KOTTARAKKARA POLICE STATION IN KOLLAM DISTRICT.** **ANNEXURE A2 THE TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 2441/2014 OF KOTTARAKKARA POLICE STATION IN KOLLAM DISTRICT PENDING AS C.C.C.NO.1170/2016 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKKARA.** **ANNEXURE A3 THE TRUE COPY OF THE ORDER SHEET IN C.C.C.NO. 1170/2016 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKKARA.** **ANNEXURE A4:- THE TRUE COPY OF THE COMPLAINT DATED 2.12.2014 FILED BY THE 2ND RESPONDENT BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURTI, KOTTARAKKARA.** **ANNEXURE A5:- THE TRUE COPY OF THE AGREEMENT DATED 16.2.2013 EXECUTED BY THE 1ST ACCUSED IN FAVOUR OF THE 2ND RESPONDENT.** **ANNEXURE A6:- THE TRUE COPY OF THE SALE DEED DATED 11.4.2013 EXECUTED BY THE 1ST ACCUSED TO THE 2ND RESPONDENT.** **ANNEXURE A7:- THE TRUE COPY OF THE RECEIPT DATED 11.4.2013 ISSUED BY THE 1ST ACCUSED TO THE 2ND RESPONDENT.** **ANNEXURE A8:- THE TRUE COPY OF THE CHEQUE OF ICICI BANK, KADAVANTHARA BRANCH ISSUED BY THE 1ST ACCUSED TO THE 2ND RESPONDENT FOR Rs.17,00,000/-.** **ANNEXURE A9:- THE TRUE COPY OF THE CHEQUE RETURN MEMO ISSUED TO THE 2ND RESPONDENT FOR DISHONOR OF ANNEXURE-A8 CHEQUE.** **ANNEXURE A10:- THE TRUE COPY OF THE NOTICE DATED 10.11.2014 SENT BY THE COUNSEL FOR THE 2ND RESPONDENT TO THE 1ST ACCUSED.** **ANNEXURE A11:- THE TRUE COPY OF THE REPLY DATED 21.11.2014 TO ANNEXURE-A10 NOTICE SENT BY THE COUNSEL FOR THE 1ST ACCUSED TO THE 2ND RESPONDENT.**