K. Nazeer v. K.P. Muhammed Ashraf and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941** ## **Crl.MC.No. 8161 of 2017** **FROM CC NO.685/2017 of JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR** ## **PETITIONER/ACCUSED:** **K.NAZEER AGED 47 YEARS, S/O.MAHAMMOOD HAJI, AYISHA MANZIL, PALLIKKUNNU, CHALAD, P.O.PALLIKUNNU, KANNUR-670014.** **BY ADVS. SRI.P.U.SHAILAJAN SMT.D.N.NISHANI SMT.VIDYA KURIAKOSE SRI.M.SURESH KUMAR SRI.V.SREEJITH (K/1398/2000)** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 K.P.MUHAMMED ASHRAF S/O.K.P.MUHAMMED KUNHI, M.K.HOUSE, NEAR A.S.U.P.SCHOOL, AZHIKODE AMSOM, DESOM, P.O.AZHIKODE, KANNUR DISTRICT, PIN-670009.** **2 STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **BY ADV. SMT.DAISY A.PHILIPOSE PUBLIC PROSECUTOR SMT.K.K.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.04.2019, THE COURT ON 20.05.2019 PASSED THE FOLLOWING:** Crl.M.C.No.8161/2017 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.8161 of 2017 ---------------------------------------Dated this the 20[th] day of May, 2019 ## **O R D E R** The petitioner is the accused in the case C.C.No.685/2017 on the file of the Court of the Judicial First Class Magistrate-I, Kannur. He seeks to quash the proceedings against him by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The case against the petitioner is based on Annexure 1 complaint filed against him by the first respondent. The material averments in the complaint can be stated as follows: The accused (the petitioner and K.Musthafa) made the complainant and his friend P.P.Abdul Salam to believe that the petitioner is the absolute owner in possession of the property having an extent of 29 cents. The second accused (K.M.Musthafa) is the power of Crl.M.C.No.8161/2017 3 attorney holder of the first accused (the petitioner) who had authority to execute agreement for sale and also sale deed in respect of the aforesaid property for and on behalf of the first accused. Believing the words of the accused, after verifying the title deeds and other documents, on 05.04.2011, the complainant and P.P.Abdul Salam entered into an agreement with them for sale of the aforesaid property. The consideration fixed was Rs.2,82,000/- per cent. The agreement had to be performed within six months. At the time of execution of the agreement, the complainant and P.P.Abdul Salam paid an amount of Rs.9,00,000/- to the second accused as advance towards sale consideration. Thereafter, on 02.06.2011, a further amount of Rs.5,00,000/- was paid to the second accused towards sale consideration. The period of the agreement was extended till 14.11.2012 as per the request of the accused. When the accused tried to delay the execution and registration of the sale deed and to assign the property to other persons, the complainant and P.P.Abdul Salam filed a suit for injunction as O.S.No.383/2012 in the Munsiff's Court, Kannur and obtained an Crl.M.C.No.8161/2017 4 order of injunction dated 10.09.2012 restraining the accused from alienating the property. Subsequently, the complainant and P.P.Abdul Salam filed a suit as O.S.No.679/2012 for specific performance of the agreement in the Sub Court, Kannur. In that suit also, they obtained an order of temporary injunction against the accused restraining them from alienating the property. Ignoring the orders of the court, the accused colluded together and dishonestly executed and registered sale deed No.4015/2012 of S.R.O Kannur on 17.11.2012 in favour of some other persons. The accused have intentionally caused material damage to the reputation and property of the complainant and P.P.Abdul Salam. The accused have committed the offences punishable under Sections 423, 417, 406 and 403 read with 34 of the Indian Penal Code. 3. After recording the sworn statement of the complainant and conducting enquiry under Section 202 of the Code, the learned Magistrate issued process against the petitioner and K.Musthafa (the second accused) only for the offence punishable under Section 420 I.P.C and the case was Crl.M.C.No.8161/2017 5 taken on file as C.C.No.907/14. 4. As per the order dated 22.03.2017, the learned Magistrate discharged the second accused K.Musthafa under Section 245 of the Code and the case against the petitioner (the first accused) was split up and refiled as C.C.No.685/2017. The petitioner now seeks to quash the proceedings against him in the aforesaid case. 5. Heard learned counsel for the petitioner and the learned Public Prosecutor. Learned counsel for the first respondent has not made any submissions. 6. Learned counsel for the petitioner contended that the dispute between the parties is essentially of a civil nature and none of the ingredients of the offence under Section 420 I.P.C has been made out against the petitioner. 7. Section 415 of the Indian Penal Code 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_ Crl.M.C.No.8161/2017 6 _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"._ 8. 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 induced 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 induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and iii) in cases covered by (ii) (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. A fraudulent or dishonest inducement is an essential ingredient of the offence of cheating. 9. Section 420 of the Indian Penal Code reads thus: _"420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and_ Crl.M.C.No.8161/2017 7 _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."_ 10. The ingredients to constitute an offence under Section 420 I.P.C are the following: i) a person must commit the offence of cheating under Section 415 I.P.C ; and ii) the person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Cheating is an essential ingredient for an act to constitute an offence under Section 420 I.P.C. 11. It has to be kept in mind that there is distinction between mere breach of contract and the offence of cheating. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Crl.M.C.No.8161/2017 8 12. In the present case, there is nothing to indicate that the petitioner had dishonest intention right at the beginning of the transaction to deceive the first respondent. Dishonest intention on the part of the petitioner at the time of execution of agreement cannot be presumed from the mere fact that he subsequently sold the property to a person other than the first respondent. Mere breach of promise to execute sale deed in respect of a property cannot amount to an offence punishable under Section 420 I.P.C. The dispute between the parties is essentially of a civil nature. 13. The jurisdiction under Section 482 of the Code has to be exercised with care. In the exercise of its jurisdiction, this Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute the offence alleged are not made out from a bare reading of the complaint, the continuation of the criminal proceedings will constitute an abuse of the process of the court. 14. In the instant case, the dispute between the petitioner Crl.M.C.No.8161/2017 9 and the first respondent is of a civil nature and it is more so when the complainant has already approached the civil court seeking a decree for specific performance of the agreement allegedly executed by the petitioner. The facts of the present case are squarely covered by the decision of the Apex court in ## **Nageshwar Prasad Singh v. Narayan Singh : AIR 1999 SC** ## **1480** . 14. In the aforesaid circumstances, continuation of the proceedings against the petitioner would be an abuse of process of the court. The proceedings against him are liable to be quashed. 15. Consequently, the petition is allowed. The proceedings against the petitioner in the case C.C.No.685/2017 on the file of the Court of the Judicial First Class Magistrate-I, Kannur, based on Annexure 1 complaint, are quashed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/09/05/2019 Crl.M.C.No.8161/2017 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I- CERTIFIED COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE** **JUDICIAL FIRST CLASS MAGISTRATE COURT (NO.I), KANNUR.** **ANNEXURE IICERTIFIED COPY OF THE SWORN STATEMENT OF COMPLAINANT.** **ANNEXURE IIICERTIFIED COPY OF THE JUDGMENT IN C.C.NO.907 OF 2014 DATED 22/03/2017 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, KANNUR.** ## **RESPONDENTS' EXHIBITS:** **NIL** **TRUE COPY** **PS TO JUDGE**