Jijish Kumar K.G. v. The State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943 ``` ## **`CRL.MC NO. 2489 OF 2021`** ``` CRIME NO.515/2020 OF MUNAMBAM POLICE STATION, ERNAKULAM CC 105/2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NJARAKKAL ``` ## **`PETITIONER/ACUSED:`** ``` JIJISH KUMAR K.G. AGED 37 YEARS S/O. KRISHNANKUTTY, T.C. NO.81/2012, MANAPURATH HOUSE, KULATHUR P.O., THIRUVANANTHAPURAM-695583. ``` ``` BY ADV B.MOHAN LAL ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2THE STATION HOUSE OFFICER, MUNAMBAM POLICE STATION, MUNAMBAM P.O., ERNAKULAM-683615. 3SMT. RAHEL, W/O. LATE P.C. IPE, AGED 59 YEARS, PULIKOTTIL HOUSE, CHERAI P.O., ERNAKULAM-683514. ``` ``` BY ADVS. E.S.FIROS TONY THOMAS (INCHIPARAMBIL) MINI.V.A. Adv.RANJIT GEORGE- SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2489 OF 2021 ``` ``` 2 ``` ## **`ORDER`** The petitioner herein is the accused in Crime No.515/2020 of Munambam Police Station, which is now pending as C.C. No.105/2021 on the file of the Judicial First Class Magistrate Court, Njarakkal. The aforesaid case was registered against the petitioner herein based on a private complaint submitted by the 3[rd] respondent herein, which was referred by the Judicial First Class Magistrate Court, Njarakkal, for the investigation to the Police under Section 156 (3) Cr.P.C. Based on the same Annexure, A1 First Information Report was registered. After completing the investigation, Annexure A7 Final Report was submitted by the Police. 2. The primary allegation against the petitioner is that an amount of Rs.2 80,000/- has been collected by the petitioner herein from the de facto complainant by offering that he would marry the daughter of the de facto complainant. Later, even though repayment of Rs.6,000/- each in 4 instalments were made, the remaining amount was not paid, and the complaint was submitted under such circumstances. This Crl. M.C. is filed for quashing the aforesaid ``` CRL.MC NO. 2489 OF 2021 ``` ``` 3 ``` proceedings. 3. Heard Sri.B.Mohanlal, learned counsel appearing for the petitioner, Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor appearing for the State and Smt.Mini V.A., learned counsel appearing for the 3[rd] respondent/de- facto complainant. 4. The specific contention of the learned counsel for the petitioner is that the dispute involved in the case is civil in nature. According to the learned counsel, even going by the averments contained in the complaint and the statements that form part of Annexure A7 Final Report, the transaction is a simple money transaction made between the petitioner and the de facto complainant. Even though there is an allegation that the petitioner made an offer to marry the daughter of the de facto complainant, by placing reliance upon Annexure A8 and Annexure A9 documents, it is contended that the daughter of the de facto complainant was already married even before the transaction referred to in the complaint. In such circumstances, the learned counsel prays for quashing the proceedings. ``` CRL.MC NO. 2489 OF 2021 ``` ``` 4 ``` 5. The aforesaid prayer was opposed by the learned Public Prosecutor as well as the Learned counsel for the 3[rd] respondent/defacto complainant, pointing out that the question as to the nature of the transaction can be decided only during the course of the trial, as the same is connected with the factual aspects. 6. From the rival contentions, the only question that arises is whether the petitioner successfully makes out a case for invoking the powers of this Court under Section 482 of Cr.P.C. The complaint which resulted in the registration of Annexure A1 is produced along with the First Information Report. On a perusal of the same, it can be seen that, even though it contains a vague allegation that the petitioner made an offer to marry the daughter of the de facto complainant, the primary grievance highlighted therein is non-payment of the amount borrowed by the petitioner herein. As pointed out by the learned counsel for the appellant, even if the alleged offer to marry the daughter by the petitioner is treated as a circumstance for initiating a criminal prosecution, Annexures A8 and A9 documents would indicate that the said daughter was ``` CRL.MC NO. 2489 OF 2021 ``` ``` 5 ``` already married at the relevant time. Even otherwise, on considering the averments contained in the complaint and the statements recorded under Section 161 Cr. P.C, which forms part of Annexure A7 Final Report, it is discernible that the fundamental dispute raised therein relates to the non-payment of the amount received by the petitioner herein from the de facto complainant. The learned counsel places reliance upon the judgment rendered by the hon’ble Supreme Court in **Satishchandra Ratanlal Shah v. State of Gujarat and Another** [2019 (9) SCC 148], wherein it was held that when the dispute is civil in nature, no criminal prosecution is sustainable. It was also observed in the said decision that the mere inability of the accused to return the loan amount could not give rise to criminal prosecution for cheating unless the fraudulent or dishonest intention is shown right from the beginning of the transaction, as it is the _mens rea_ which is the crux of the offence. 7. When the above principles are applied in this case, the following aspects are to be noticed. Here the primary allegation is that of borrowing of Rs.2,80,000/- by the petitioner. It is also an ``` CRL.MC NO. 2489 OF 2021 ``` ``` 6 ``` admitted fact that the petitioner made some part payments as repayment in four instalments. The relevance of the aforesaid repayment, though it was a small amount, is that the said repayments indicate that the petitioner did not have any dishonest intention to cheat the 3[rd] respondent herein right from the inception. The nature of the creditor-debtor relationship is revealed therefrom, which brings the dispute within the realm of civil laws/remedies. As held by the Supreme Court, when the dispute is predominantly civil in nature, no criminal prosecution can be initiated in respect of the same and in such circumstances, this Court is justified in invoking powers under Section 482 of Cr.P.C. for quashing the same. 8. Thus, when all the relevant inputs available in this case are considered, I am convinced that the dispute involved has a predominantly civil flavour, and no culpability could be attributed to the petitioner in respect of any of the averments made in the complaint. In such circumstances, this being a civil dispute, the prosecution against the petitioner herein is a clear abuse of the ``` CRL.MC NO. 2489 OF 2021 ``` ``` 7 ``` process of law. For that reason, invocation of powers of this Court under Section 482 of Cr. P.C is warranted. In the result, this Crl. M.C. is allowed, and Annexure A7 Final Report submitted in Crime No.515/20 and all further proceedings in C.C. No.105/2021 on the file of Judicial First Class Magistrate Court, Njarakkal are hereby quashed. **Sd/-** ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` SCS ``` ``` 8 ``` ## **`CRL.MC NO. 2489 OF 2021`** ## **`APPENDIX OF CRL.MC 2489/2021`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`ANNEXURE A1`|`THE TRUE CERTIFIED COPY OF THE`| ||`COMPLAINT AND FIR IN CRIME NO.515/2020`| ||`OF MUNAMBAM POLICE STATION IN`| ||`ERNAKULAM DISTRICT.`| |`ANNEXURE A2`|`THE TRUE COPY OF THE RELEVANT PAGES OF`| ||`THE BANK STATEMENT OF THE PETITIONER`| ||`OBTAINED FROM INDUS IND BANK,`| ||`KAZHAKOOTOM BRANCH.`| |`ANNEXURE A3`|`THE TRUE COPY OF THE RELEVANT PAGE OF`| ||`THE FACE BOOK PORTAL SHOWING THE`| ||`DEFAMATORY STATEMENT TO THE`| ||`PETITIONER'S BROTHER SRI. GRIFFIN`| ||`KUMAR SENT BY REEJA IPE, DAUGHTER OF`| ||`THE 3RD RESPONDENT.`| |`ANNEXURE A4`|`THE TRUE COPY OF THE LEGAL NOTICE SENT`| ||`BY THE PETITIONER THROUGH HIS COUNSEL`| ||`TO THE 3RD RESPONDENT AND HER DAUGHTER`| ||`ON 25/11/2019.`| |`ANNEXURE A5`|`THE TRUE COPY OF THE REPLY NOTICE SENT`| ||`BY SMT. REEJA IPE TO THE COUNSEL FOR`| ||`THE PETITIONER DATED 18/12/2019.`| |`ANNEXURE A6`|`THE TRUE COPY OF THE COMPLAINT CMP`| ||`NO.936/2020 FILED BY THE PETITIONER`| ||`BEFORE THE JUDICIAL FIRST CLASS`| ||`MAGISTRATE COURT-II,`| ||`THIRUVANANTHAPURAM AGAINST THE 3RD`| ||`RESPONDENT AND HER DAUGHTER DATED`| ||`20/02/2020.`| |`ANNEXURE A7`|`THE CERTIFIED COPY OF THE FINAL REPORT`| ||`IN CC NO. 105/2021 OF THE JUDICIAL`| ||`FIRST CLASS MAGISTRATE COURT,`| ||`NJARAKKAL.`| |`ANNEXURE A8`|`THE TRUE COPY OF THE JUDGMENT IN OP`| ||`NO.29/2018 DATED 20/01/2018 OF THE`| ||`FAMILY COURT, ERNAKULAM.`| |`ANNEXURE A9`|`THE TRUE COPY OF THE NOTIFICATION OF`| ||`MARRIAGE ISSUED BY THE PARISH PRIEST`| ||`ST. PHILOMINA'S CHURCH, KOONAMMAVU`| ||`DATED 27/12/2018.`| ``` 9 ``` ## **`CRL.MC NO. 2489 OF 2021`** ``` ANNEXURE A10THE TRUE COPY OF THE LABORATORY REPORT OF SMT. REEJA IPE OBTAINED FROM SANTHI CLINIC AND HOSPITAL DATED 11/02/2019. ```