K. K. Moideen v. P.P. Jasheek, Vinish Suresh Babu and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941 ## CRL.A.No. 459 of 2011 AGAINST THE JUDGMENT IN CC 223/2008 of CHIEF JUDICIAL MAGISTRATE , KALEPETTA ## APPELLANT/COMPLAINANT: K.K.MOIDEEN S/O.LATE KUNHAMMED, AGED 46 YEARS,, KILIYANARI HOUSE, GREENLAND COLONY,, KALPATTA POST, WAYANAD. BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.) ## RESPONDENTS/ACCUSED & STATE: - 1 P.P.JASHEEK S/O. P.P. KOYA, AGED 37 YEARS, PONNAMPARAMBATHI HOUSE,, CHEVAYUR POST, KOZHIKODE-673 017. - 2 VINISH SURESH BABU, S/O.SURESH BABU, AGED 38 YEARS,, MEKUNNATH HOUSE, RIVER VIEW,, CHALAPURAM POST, KOZHIKODE-673 002. - 3 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. BY ADV. SRI.DEVAPRASANTH.P.J. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. Appeal No. 459 of 2011 -2- ## **JUDGMENT** Respondents 1 and 2 were prosecuted before the court below on the basis of a complaint filed by the appellant herein for an offence punishable under Section 420 r/w Section 34 IPC on the allegation that during December, 2007, they received Rs.19,00,000/- from the appellant/complainant agreeing to transfer the dealership of Hero Honda Motor Bikes, and thereby cheated the appellant. According to him, respondents 1 and 2 did not have the dealership as claimed by them. 2. During trial, the appellant was examined as PW1, and PWs 2 and 3 were examined. Exts.P1 to P10 were marked on the side of the appellant. Ext.D1 was marked on the side of the accused. When they were questioned under Section 313 Cr.P.C., the respondent 1 and 2 denied all the incriminating evidence brought against them. 3. The trial court, as per judgment dated 13.01.2011 in C.C. No. 223 of 2008, acquitted the accused. Highly aggrieved by the same, this appeal has been filed. 4. The learned counsel for the appellant contended that the court below ought to have found that the appellant has proved the ingredients of the offence allegedly committed by the accused and there is no justification for finding the accused not guilty of the offence alleged against them. He has also contended that the evidence in the case was not appreciated in the correct perspective by the court below. He has Crl. Appeal No. 459 of 2011 -3- further contended that it has come out in evidence that the accused had received money from the complainant after making certain promises which were not fulfilled and the money is not returned also. On the aforesaid grounds the appellant prayed for setting aside the impugned judgment. 5. The first respondent is a partner in an automobile business in the name and style of 'City Mobikes', which was dealing the service and sales of spare parts pertaining to Hero Honda Motor Bikes. It has also turned out that the first respondent had obtained an employment at Dubai and hence he intended to sell the dealership and the business. On 15.12.2007, the complainant had visited the business place of the accused and he had seen several motor bikes kept in the premises for the purpose of sale. A board was also displayed at the premises as the authorised dealer of Hero Honda. The complainant and the accused had agreed to sell the business premises and the accessories for a total consideration of Rs.5,50,000/- along with the charges pertaining to the spare parts. It was also agreed by the appellant that he would deposit Rs. 1,10,000/- to the owner of the building as security. Accordingly on 17.12.2007, an agreement was prepared; but it could be executed only on 10.01.2018. On that day, an advance amount of Rs.50,000/- was also paid. Subsequent to that, at the request of the accused, a deed of partnership was also executed as per which the first accused was retired Crl. Appeal No. 459 of 2011 -4- from the partnership. The appellant and two others were impleaded in the partnership business. In that deed, the business conducted by the accused is shown as authorised sales and service of Hero Honda vehicles. It was also agreed by the parties to pay the entire balance on or before 10.03.2008. After starting the business, the accused was not inclined to furnish the documents pertaining to the dealership of Hero Honda and in the month of February, the appellant/complainant was told by the accused that there is no dealership of the motor bikes at the premises. According to the appellant, there was material suppression on the part of the accused while entering into the contract that with regard to the absence of dealership of the bikes. It has also held that the appellant was made to believe and accordingly he entered into a contract on an impression that he had got dealership with regard to the sale and service of Hero Honda bike. While so, on 13.03.2008, the first respondent showed a notice issued by the Income Tax Department and assured that he will hand over the entire files, CDs and the computer hard disc pertaining to the bank account of the business for answering the notice issued by the Income Tax Department in the event if the complainant is inducted to subscribe the signature in a document. He has also threatened that if the complainant is not inclined to put the signature, the complainant had to face dire consequences and ultimately the complainant was constrained to put the signature in an agreement Crl. Appeal No. 459 of 2011 -5- showing that the accused have no authorised dealership. The definite case of the complainant is that the accused had deliberately suppressed the vital aspects and caused wrongful loss to the complainant to the tune of Rs.19,00,000/-. 6. It is profitable to extract Sections 415 and 420 IPC, which reads thus: 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”. “420. Cheating and dishonestly inducing delivery 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 of 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.” So, in order to prove the ingredients of Section 415 and 420 IPC, the appellant ought to have proved that he was deceived by the respondents fraudulently and dishonestly and induced him and thereby he has given Rs.19,00,000/- to the respondents. In order to establish Section 420 IPC, there must be an evidence to prove that at the time of entering the agreement, there should be fraudulent or dishonest inducement of a person by deceiving him. Secondly, a person so deceived should be Crl. Appeal No. 459 of 2011 -6- induced to deliver any property to any person or to consent that any person shall retain any property. Thirdly, the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. In cases covered by the third situation, the act of omission should be one which causes or is likely to cause damage or harm to the person induced in the body, mind, reputation or property. The same has been reiterated in _**S. W. Palanitkar v. State of Bihar**_ [(2002) SCC (Crl.) 129] 7. Ext.P1 is the copy of the agreement entered into between the appellant and respondents 1 and 2. In Ext.P1, the business is seen described as sales and service of Hero Honda Vehicles. Ext.P1 is dated 17.12.2007; but it was seen executed on 10.01.2008. After the execution of Ext.P1, the appellant/complainant has paid Rs.1,10,000/- to the owner of the building as security. As per Ext.P2, the copy of the deed of reconstitution of the partnership, the first respondent retired from the partnership business and the complainant was inducted into the business as a partner. The nature of the business conducted by the parties is explained in page No.2 of Ext.P2 as the service and spare parts of Hero Honda Vehicles. Ext.P2 does not show the dealership business of Hero Honda. Ext.P3 is the copy of receipt dated 01.02.2008 evidencing payment of Rs.1,10,000/- to the owner of the building. According to the appellant/complainant, Ext.P4 was executed due to the threat on the Crl. Appeal No. 459 of 2011 -7- part of the first accused that even if the appellant/complainant did not subscribe the signature in Ext.P4 the first accused will never hand over the accounts and connected documents to the complainant for answering the notice issued by the Income Tax Department. In Ext.P4, there is an admission made by the appellant/complainant that the entry in the original agreement with regard to the business as an authorised dealership is a clerical mistake and this fact has been mentioned in the last page of Ext.P4. The definite case of the appellant is that by adopting coercive steps on the part of the first respondent that Ext.P4 was procured. Ext.P5 is the copy of the notice dated 22.10.2007 issued by the Income Tax Department to the first accused. Ext.P6 is the copy of the lawyer notice issued by the appellant to the first accused. The complainant has also produced Exts.P7, P8 and P9 which were the copies of the orders passed by the Consumer Forum, Wayanad, copy of deposition of a party to the above proceedings and also the copy of the complaint in C.C. No. 5 of 2010. Those documents were produced to show that the first accused was doing business of sales pertaining to the motor bikes. 8. On the side of the appellant/complainant, two witnesses were examined. PW2 is an attestor to Exts.P1, P2 and P4. He was cited as a witness to prove that the signature of the appellant was obtained in Ext.P4 by threatening him on the basis of Ext.P5. Admittedly, PW2 is Crl. Appeal No. 459 of 2011 -8- also a partner to the business. He had given evidence to the effect that an agreement was entered into between the appellant/complainant and the respondent on making the appellant to believe that the business being run by the respondent was dealership and service of spare parts of Hero Honda Bikes. PW3 is a broker to the transaction and he had tendered evidence to the effect that though he was told by the respondent that he was running a business of sales and service of spare parts of Hero Honda as an authorized dealer. In addition to that, he has deposed that a board was also displayed in the business premises to that effect. According to him, there was a threat on the part of the respondent and therefore, the appellant had subscribed his signature on Ext.P4 document. The appellant also had a case that there was a prohibition on the part of the Hero Honda Company with regard to the transfer of the dealership. Accordingly, the Company had terminated the service centre as per letter dated 06.05.2010 on account of the unauthorised transfer of the business to a third party. Ext.P10 was produced to prove the same. Now, the appellant has filed the complaint stating that the respondent/accused has, with dishonest intention to cheat the appellant, suppressed the fact that he had got dealership of the company and on knowing this fact, the respondent had entered into Ext.A1 agreement and received the amount from the appellant. So, according to the appellant, the material suppression of the fact at the Crl. Appeal No. 459 of 2011 -9- time of inception of the contract is sufficient to prove that the respondent is guilty of the offence punishable under Section 420 of IPC. According to the learned counsel, the appellant is liable to prove that there was material suppression on the part of the respondent. In order to substantiate this fact, he has relied on the decision in _**Chinnamma v.**_ _**Thomas**_ (2001 (2) KLT 887). The court below has observed that the facts and circumstance of the aforesaid ruling is entirely different from the facts and circumstances of this case. Now, the appellant has produced two documents to prove that there was material suppression on the part of the respondent. Ext.P1 is the document produced by the appellant stating that the respondent is having dealership and sales pertaining to the motor bike and the subsequent documents produced by the appellant would reveal that the above entry contained in Ext.P1 was a mistake. Ext.P2 is another document admittedly executed by the appellant; but nothing is mentioned in Ext.P2 that it was written by collusion or compulsion on the part of the respondent. It is also admitted by the appellant that he has subscribed the signature in Ext.P1 on 10.01.2008. In fact, Ext.P2 was executed on 11.01.2008. In Ext.P2, the business conducted in the premises is specifically mentioned as service of spare parts. It does not reveal that the business of sales and dealership of the Hero Honda Bikes was being run by the respondent as stated by the appellant. Ext.P2 is the deed of re-constitution of Crl. Appeal No. 459 of 2011 -10- partnership which was also admittedly signed by the appellant. If he intended to continue the dealership of the Hero Honda Bikes, definitely that would have mentioned in Ext.P2 document. So, the production of Ext.P2 document is sufficient enough to prove that the respondent is not having the business of sales and dealership of the Hero Honda Bikes. So, the production of Ext.P2 is sufficient to prove the case advanced by the appellant. Ext.P4 is another document, wherein there is a specific admission that the entry which was made in Ext.P1 with regard to the dealership and sales of Hero Honda was a clerical mistake. The appellant as well as two other witnesses were examined to prove the case of the appellant. But, the appellant as well as PWs 2 and 3 have given evidence against the recitals in Exts.P2 and P4. So, that cannot be accepted in view of the bar contained under Section 92 of the Evidence Act. Even though the case of the appellant is that his signature was obtained in Ext.P4 by adopting coercive steps, he has not taken any steps to prosecute the respondent in this regard. Moreover, it was admitted by the appellant that he has subscribed the signature on Exts.P1, P2 and P4 and he is not an illiterate person. In order to substantiate the guilt under Section 420 of IPC, there must be an evidence to prove that there was dishonest intention on the part of the respondent. Ext.P1 is an agreement, wherein there was an entry that the respondent is having the business of dealership and sale of Hero Crl. Appeal No. 459 of 2011 -11- Honda; but this fact was corrected in Ext.P3 document on the next day of the execution of Ext.P1 document and it was duly signed by the appellant also. If the appellant had any grievance regarding the execution of Ext.P2, he would not have signed it. After subscribing the signature, he cannot turn around and say that he was cheated. In fact, the appellant was having knowledge that the respondent was not having the dealership of sale of Hero Honda Bikes as stated in Ext.P1 and on the strength of Ext.P2 document, the fact involved in Ext.P1 was corrected. Even though there was admission on the part of the appellant to prove that the signature was obtained by coercion and fraud, he has not taken any steps against the respondent. Eventhough the appellant's counsel has a contention that the subsequent insertion in Exts.P2 and P4 with regard to the absence of sale and authorized dealership may not absolve the respondent from the liability since the respondent had already made a promise at the time of original entries contained in Ext.P1. Having subscribed the signature in Exts.P2, P3 and P4 documents, the appellant is restrained from taking a contention that the entries in those documents are incorrect. The admission on the part of the appellant that the fact contained in Ext.P1 regarding the sales and authorized dealership of Hero Honda was included as a mistake. The appellant has miserably failed to prove the ingredients as contemplated under Section 420 of IPC. The appellant has miserably failed to establish this fact and Crl. Appeal No. 459 of 2011 -12- even the production of Exts.P2 to P4 on the side of the appellant is sufficient enough to disprove the allegations raised against the respondent. In fact, the ingredients under Section 420 of IPC is not established by the appellant. The admission of the appellant as per Exts.P2 to P4 with regard to the clerical error contained in Ext.P1 in respect of dealership of Hero Honda would make the entire case advanced by the appellant is false. The court below has considered all these facts in detail and ultimately decided that the respondent is not guilty under Section 420 of IPC. Even after analysing the entire evidence, I do not find any ground to interfere with the judgment of the court below and it is only to be confirmed. In the result, this appeal is dismissed. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. Appeal No. 459 of 2011 -13-