K. Raveendran and C.N. Prabhakaran v. State of Kerala and Vidyamani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 4[TH] DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945** **CRL.MC NO. 1220 OF 2013** **AGAINST THE ORDER/JUDGMENT CC 878/2008 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS ,AMBALAPUZHA** ## **PETITIONERS/ACCUSED:** 1 K.RAVEENDRANS/O.KRISHNAN, KATTUNKAL HOUSE, WARD NO.17 OF AMBALAPUZHA NORTH GRAMA PANCHAYATH, VANDANAM.P.O., ALAPPUZHA-5. 2 C.N.PRABHAKARANS/O.NANU, PREM NIVAS, WARD NO.11 OF AMBALAPUZHA NORTH GRAMA PANCHAYATH, VANDANAM.P.O., ALAPPUZHA-5. BY ADV SRI.P.K.RAVISANKAR ## **RESPONDENTS/STATE AND CW1:** 1 STATE OF KERALAREPRESENTED BY THE STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 VIDYAMANIW/O.SASIDHARAN, VISHNU NIVAS, KAPPIL WEST, WARD NO.XIII OF KRISHNAPURAM PANCHAYAT, KRISHNAPURAM.P.O., KAYAMKULAM, ALAPPUZHA DISTRICT. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.1220 of 2013 2 ## **P.V.KUNHIKRISHNAN** **- - - - - - - - - - - - - - - - - - - - -** CRL.MC No.1220 of 2013 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 4[th] day of September, 2023 ## **ORDER** The petitioners are the accused in C.C.No.878/2008 on the file of the Judicial First Class Magistrate Court, Ambalapuzha. It was charge sheeted by the Punnapra Police against the petitioners alleging offence punishable under Section 420 r/w 34 of the Indian Penal Code. 2. The petitioners are the Secretary and the President respectively of SNDP Branch No.245 of Vandanam – Neerkkunnam, Vandanam P.O., Alappuzha. The 2[nd] respondent had submitted a criminal complaint before the District Superintendent of Police, Alappuzha along with 15 others against petitioners alleging that the petitioners collected deposits in the name of Sakha and cheated them by not returning the same with interest. It was made over to the Punnapra Police Station and they registered Crime No.321/2007 for offences punishable under sections 406, 420 r/w 34. While the investigation in crime no.321/2007 was in progress, the 2[nd] respondent filed a private complaint on the same set of facts before CRL.MC No.1220 of 2013 3 the Judicial First Class Magistrate Court, Ambalapuzha as evident by Annexure-A, in which, the petitioners are the accused. It was referred to the Punnapra Police Station under Section 156(3) Cr.P.C and the Punnapra police registered Crime No.344/2007. On completion of the investigation, a final report was filed against the petitioners as evident by Annexure-B order. 3. The prosecution case is that the petitioners received a total amount of Rs.4,00,000/- from the 2[nd] respondent by inducing her to believe that it would be deposited in S.N.D.P Branch No.245 and that it would be returned to her with interest at the rate of 18%. It was not so returned and thereby they committed offence under Section 420 read with Section 34 IPC. It is the case of the petitioners that there was several litigations claiming return of deposits and all the matters were settled at different stages with the intervention of the District Legal Service Authority, Alappuzha. It is submitted that the petitioners filed PLP No.550/11 before the District Legal Service Authority, Alappuzha appending a full list of the litigations including Execution petition pending before the different Courts in Alappuzha praying for settling the entire claims of all the creditors of the Shaka by sale of a portion of its property under the supervision of that Authority. As per Annexure C CRL.MC No.1220 of 2013 4 judgment, this Court directed the District Legal Service Authority, Alappuzha to do the needful. It is submitted that the District Legal Service Authority, Alappuzha has formed a Committee for that purpose in which the creditors including some of these respondents and their counsel have representations and that committee is proceeding with the sale of portion of the property of the Shaka for settling all its liabilities. It is also submitted that the 2[nd] respondent filed O.S.No.401/2008 against S.N.D.P Branch No.245, VandanamNeerkunnam for the recovery of her deposit amounts and interest accrued thereon. It was decreed exparte. That matter is pending in execution. In such circumstances, it is submitted that Annexure B final report is to be quashed because no criminal offence is made out. Hence, this Crl.MC. 4. Heard the counsel for the petitioners and the learned Public Prosecutor. 5. This Court perused Annexure B final report. A perusal of the same would show that the grievance of the defacto complainant is only civil in nature. It will be better to extract the relevant portion of the final report. “ പപതതകൾകക 1-)o സ�കതയ� അമതതപലതശ വ�ഗക ദ�ന� യ��ക തക നതകകപ� സ��കരതച�ക �തതകണയമന�ള CRL.MC No.1220 of 2013 5 ഉക#ശക$�ട�ക&ടത പപതതകൾ ഭരണസ�ന� വഹതക�ന യക�ല� - ആലപ�ഴ NH ക.�ഡതൽ വണ�ന� പളതമ�കക ജ�ഗക3നതൽ നതന�� സ�മ�ർ 50 മ�റർ വടക� മ�.ത ടത ക.�ഡതനകയ. പടതഞ�.�ര�കതൽ സതതതയ�യ�ന വണ�ന� ന�ർക�ന� SNDP BR.NO 245 -ൽ പണ� നതകകപതച�ൽ 18% പലതശ മ�ടക� ക&ട�യത യക�ട�$� യക�ള�യമനക 1-)o സ�കതയ� പ.ഞ� വതശ�സതപത�ക ടത സ�കത�തൽ നതന�� 30.08.05 -ൽ രണക ലക� ര&പ��� 4.10.05 -ൽ 2 ലക� ര&പ��� നതകകപമ��ത സ��കരതച�ക വ�ഗക ദന� യ��ക ത 18% പലതശ ഉൾയപയട ന�ല�ലക$ത എഴ�പ$തരണ��തര� ര&പ �തതയചട�$ക പപതതകൾ ക9ത:$തനക പരസക പര� ഉത�ഹതകള�� .” സഹ��തകള�മ��ത പപവർ$തചതരതക�ന� എന�ളതക 6. I am of the considered opinion that even if entire allegations are accepted, the offence under Section 420 IPC is not made out. 7. To attract an offence under Section 420 IPC, certain basic ingredients are necessary. The Apex Court in **Peethambaran v. State of Kerala [2023 (3) KLT 493]** considered the ingredients of Section 420 IPC in detail. It will be better to extract the relevant portion of the above judgment: “24. The offence alleged in the FIR is Section 420IPC which is a serious form of cheating include inducement in terms of delivery of property and/or valuable securities. The ingredients that must be CRL.MC No.1220 of 2013 6 met in order to constitute an offence under the section have been noted by this Court in Vijay Kumar Ghai and Ors. v. State of West Bengal and Ors.13 by a bench of two judges (consisting one of us, Krishna Murari, J.: 35.To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved: - (i) The representation made by the person was false. - (ii) The accused had prior knowledge that the representation he made was false. - (iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made. - (iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed. 36. As observed and held by this Court in R.K. Vijayasarathy v. Sudha Seetharam [R.K. Vijayasarathy V. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri) 454] , 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 or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420IPC.” ## 8. Similarly in **Deepak Gaba v. State of Uttar Pradesh** ## **[2023 (1) KLJ 795]** the Apex Court again considered the evidence CRL.MC No.1220 of 2013 7 necessary to attract the offence under Section 420 IPC. It will be beneficial to extract the relevant portion of that judgment: “16. In order to apply S.420 of the IPC, namely cheating and dishonestly inducing delivery of property, the ingredients of S.415 of the IPC have to be satisfied. To constitute an offence of cheating under S.415 of the IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of S.415 of the IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements would debase the offence of cheating (Iridium India Telecom Limited v. Motorola Incorporated and Others, AIR 2011 SC 20.). Explaining the contours, this Court in Mohd. Ibrahim and Another v. State of Bihar and Others (2009 (8) SCC 751. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to respondent no.2 - complainant. We respectfully concur with the clarification as well as the ratio explaining S.415, S.464 etc. of the IPC.), observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a CRL.MC No.1220 of 2013 8 valuable security.” 9. In the light of the above principle, I am of the considered opinion that the prosecution against the petitioners based on Annexure B final report is unsustainable. The offence of cheating is not made out, even if the entire allegations are accepted. 10. Therefore, this Crl.MC is allowed. All further proceedings against the petitioners in C.C.No.878/2008 on the files of the Judicial First Class Magistrate Court, Ambalappuzha are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** bng CRL.MC No.1220 of 2013 9 ## **APPENDIX OF CRL.MC 1220/2013** |PETITIONERS ANNEXURES|| |---|---| |ANNEXURE A|TRUE COPY OF THE COMPLAINT DATED 23.10.2007| ||FILED BY 2ND RESPONDENT BEFORE THE JFCM,| ||AMBALAPPUZHA.| |ANNEXURE B|TRUE COPY OF THE FINAL REPORT DATED 3.07.2008| ||IN C.C.NO.878/08 ON THE FILE OF THE JFCM,| ||AMBALAPPUZHA.| |ANNEXURE C|TRUE COPY OF THE JUDGMENT DATED 27.7.2012 IN| ||W.P[C]NO.16833| |ANNEXURE D|TRUE COPY OF THE JUDGMENT DATED 16.10.2012 IN| ||R.F.A.NO.105/2002.|