Kannappan and Others v. State of Kerala and Dr. Nandagopal

Crl.M.C.No.4718 of 2013 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 08TH DAY OF JUNE 2018 / 18TH JYAISHTA, 1940** ## **Crl.MC.No.4718 OF 2013** **IN CC NO.1407/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PALAKKAD** **CRIME NO.302/2008 OF Walayar Police Station, Palakkad** ## **PETITIONERS/ACCUSED PERSONS:** **1 DR.KANNAPPAN AGED 62 YEARS S/O.O.R.M. ODAIYAPPA CHETTIAR, MANAGING TRUSTEESECRETARY, VN PUBLIC HEALTH & EDUCATIONAL TRUST, NO.25, JAWAHAR MAIN ROAD, TRT NAGAR, THENI, TAMIL NADU STATE, PIN 625531.** - **2 MRS.K.SANTHI AGED 52 YEARS W/O.DR.O.KANNAPPAN, DOOR NO.376, MADURAI POST, THENI, TAMIL NADU STATE, PIN 625531.** - **3 DR.K.ODAIYAPPAN AGED 30 YEARS S/O.DR.O.KANNAPPAN, ASST.PROFESSOR IN ONCOLOGY, KASTHURBA MEDICAL COLLEGE, MANIPAL.** - **4 DR.MRS.ALAMELU SUBRAMANIYAN AGED 27 YEARS D/O.DR.O.KANNAPPAN, TUTOR IN FORENSIC MEDICINE, CHENNAI MEDICAL COLLEGE, TRICHY.** - **5 MR.M.THIYAGARAJAN AGED 52 YEARS S/O.T.MEIYAPPAN, NMT HOUSE, NATCHIAPURAM, SIVAGANGAI DISTRICT, TAMIL NADU.** Crl.M.C.No.4718 of 2013 2 **6** **ER.V.SUNDARAM AGED 74 YEARS (RETIRED DIVISIONAL ENGINEER, TNEB), S/O.VENKITACHALAM CHETTIYAR, PANTHADI, V STREET, MADURAI, TAMIL NADU.** **BY ADVS. SRI.S.RADHAKRISHNAN SMT.R.ANJALI SRI.S.RAJMOHAN SMT.V.M.RUSHDA** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 DR.NANDAGOPAL S/O.M.A.PONNUCHAMI, RESIDING AT H.NO.902, NETHAJI STREET, MARAPPALAM, ERODE, TAMILNADU.** **R1 BY SMT.MAYA, PUBLIC PROSECUTOR R2 BY ADV. SRI.V.V.ASOKAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.06.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.4718 of 2013 3 **MARY JOSEPH, J --------------------------------------------------Crl.M.C.No.4718 of 2013 --------------------------------------------------Dated this the 8[th] day of June, 2018** ## **O R D E R** Petitioners who are accused in C.C.No.1407/2012 on the files of the Judicial First Class Magistrate Court-I, Palakkad alleged to have committed the offences punishable under Sections 403, 416, 417, 418 and 423 r/w 109 of the Indian Penal Code have approached this Court seeking to quash the FIR and the final report and all further proceedings initiated pursuant to that in C.C.No.1407/2012. 2. Sri.S.Radhakrishnan and Smt.Maya addressed this Court on behalf of the petitioners and the respondents. 3. The 1[st] petitioner is none other than a well known Surgeon in the State of Tamil Nadu and the 2[nd] petitioner is his wife. They are residents of Theni. The 1[st] petitioner claims to be the Managing Trustee-Secretary of V.N Public Heath and Educational Trust (for short 'the VNP Trust'). A Medical College by name Odayappa Medical College, was proposed to be started Crl.M.C.No.4718 of 2013 4 by VNP Trust at Walayar, Palakkad. The 3[rd] petitioner is the son of the 1[st] petitioner and a doctor working as Assistant Professor of Oncology in Kasthurba Medical College, Manipal. The 4[th] petitioner is the daughter of the 1[st] petitioner and also a doctor working as a Tutor in Forensic Medicines associated with Chennai Medical College at Trichi. The 5[th] petitioner is the brother in law of the 1[st] petitioner and engaged in his own business of ornamental plants production at Karaikkudy. The 6[th] petitioner is the father in law of the 1[st] petitioner, who is a retiree from Tamil Nadu Electricity Board as a Divisional Engineer, having the place of abode at Madurai. 4. The 1[st] respondent is the State and the 2[nd] respondent is the founder Trustee of VNP Trust. 5. The 2[nd] respondent had filed a criminal complaint as C.M.P.No.5203/2008, before Judicial First Class Magistrate Court, Palakkad against the petitioners alleging commission of offences punishable under Sections 403, 406, 416, 417, 418 419, and 423 r/w 109 of the Indian Penal Code (for short 'IPC'). The complaint was referred by the Magistrate to Walayar Police under sub-section (3) of Section 156 Cr.P.C and based on that Crime No.302/2008 was registered by the Walayar Police, on 7.10.2008, copy of which is appended to the petition on hand as Annexure 1. 6. The allegation in the complaint aforesaid was that during the tenure of the complainant as the Managing Trustee and accused Crl.M.C.No.4718 of 2013 5 Nos.1 to 6 as members of VNP Trust, without the juncture of the complainant and without his knowledge and consent, accused Nos.1 to 6 joined together and appointed the 1[st] accused/1[st] petitioner as the Secretary of VNP Trust, and changed the name of the Medical College as Odayappa Medical College, instead of VNP Medical College and created a liability of Rs.15 lakhs to the said institution. It is further alleged that the petitioners had purchased goods of inferior quality and appointed ineligible persons as employees in the hospital by making false paper advertisements and thereby unauthorisedly won over the complainant and cheated him and misused the property. According to the complainant, the accused persons by impersonation has caused illegal loss to the institution and thereby are guilty of fraud and deceit. 7. Investigation was conducted into the allegations raised as above and the same culminated in the filing of the final report under sub-section (2) of Section 173 Cr.P.C on 16.6.2009, the certified copy of which is produced alongwith the petition on hand as Annexure 2. Annexure 2 was filed before Judicial First Class Magistrate Court I, Palakkad and the same was received on file by the Magistrate and numbered as C.C.No.1407/2012. 8. It was found alleged by Walayar Police in Annexure 2 that VNP Trust was registered on 8.11.1995 by a registered deed No.1134/1995 at the District Registrar, Erode, Tamil Nadu with the Crl.M.C.No.4718 of 2013 6 defacto complainant as the Chairman and was functioning as such. On 21.7.2005 a supplementary deed was registered with the office of the Sub Registrar, Theni, by inducting accused 1 to 6 as members and appointing the 1[st] accused as the Secretary. Against the provisions of bye-law and without convening a Board meeting, a building was constructed by the 1[st] accused in the property belonging to the Trust at Pathinalamkallu of Walayar East Village, Puthussery Panchayat, without permission or documents. For the construction building materials of inferior quality was utilized. Employees were appointed at the institution on his own and the functioning of the same was started in the name of Odayappa, the father of the 1[st] accused. During the course, the accused had created liability for other members of the Trust. They had also colluded together to commit fraud and cheating by possessing the property with their knowledge that their actions would result in loss, fabrication of false documents and impersonation. Therefore, the accused were chargesheeted in Annexure 2 for the offences detailed above in Annexure 1. 9. It is contended by Sri.S.Radhakrishanan, the learned counsel for the petitioners that the none of the offences alleged against the petitioners will sustain. According to him, the commission of all the offences revolved round on the document dated 21.7.2005. On 21.7.20005, a ratification deed was executed by the 2[nd] respondent, the complainant and 5 trustees of VNP Trust stating that Crl.M.C.No.4718 of 2013 7 they were in search of people for realisation of money advanced by the Trust, for acquiring assets and to achieve its objects. Six original trustees invited persons capable to do the above with offer and promised them that they will be co-opted as life time trustees, as successors of the resigned co-opted trustees. The true copy of the said ratification deed is produced and marked as Annexure 3. The people listed in the document as 13 to 18 accepted their proposal and in pursuance of the understanding reached among the trustees, six co-opted trustees have resigned from the Trust and the petitioners were inducted in their place as trustees to constitute the Board of Trustees. Annexure 3 was signed by the 2[nd] respondent Mr.P.Nandagopal and his five relatives. In view of Annexure 3 absolute right was conferred on the 1[st] petitioner to carry out construction of building for the Medical College to start with. The 1[st] petitioner had completed the construction of the Medical College gaining authority from Annexure 3. On the basis of Anneuxre 3, an application was also submitted by the 1[st] petitioner to the Government of Kerala for obtaining essentiality certificate, which was issued by the Government, permitting establishment of a Medical College with 100 seats at Walayar. The true copy of the essentiality certificate is appended to the petition on hand as Annexure 4. The construction of the Medical College was started by the 1[st] petitioner and it was at its final stage. Thereupon the 2[nd] respondent changed his attitude and Crl.M.C.No.4718 of 2013 8 started restraining the petitioner from continuing the construction work and getting approval. 10. It is further urged that second respondent and five others filed O.S.No.283/2008 contending that the 1[st] petitioner is mismanaging the trust property and pursuing with the construction of Medical College in violation of building rules with materials of inferior quality and an order of injunction was sought. The Munsiff Court, Palakkad declined to grant injunction in the suit, copy of the order is produced alongwith the petition on hand as Annexure 5. The attempt of the 2[nd] respondent for getting a receiver appointed for the trust properties was also dismissed by the Munsiffs Court, Palakkad in the abovementioned suit for want of evidence to support the claim, the copy of which order is appended to the petition on hand as Annexure 6. Thereafter, an interlocutory application filed by the respondent seeking to restrain the plaintiff from causing obstruction from getting the Medical College registered at Puthussery Panchayat and obtaining NOC for other construction, was disposed of directing the respondents not to cause obstruction to the petitioners from proceeding ahead with the construction and for obtaining necessary sanction or certificates from the authorities concerned, true copy of which is produced alongwith and marked as Annexure 7. Based on the above, it is contended by the learned counsel that the registration of the crime was only an outcome of the ulterior motive of the Crl.M.C.No.4718 of 2013 9 respondent against the petitioners and therefore the same and Annexure 2 are liable to be quashed. The contention of the learned counsel was that the parties are at loggerheads and the disputes, which are the outcome of that are purely of civil nature and criminal proceedings are not liable to be pursued with on its basis. 11. The learned counsel for the petitioner has also relied on dictums in **S.N.Palanitkar & Ors. State of Bihar & another (AIR 2001SC 2960), State of Hariyana v. Bhajanlal [(1992) Suppl. 1 SCC 335], Zandu Pharmaceutical Works Ltd. v. Mozd.Sharaful Haque [(2005) 1 SCC 122], State of A.P v. Gowrishetti Mahesh [(2010)11 SCC 226]** , and **Asmathunnisa v. State of Andra Pradesh [(2011)11 SCC 259]** to contend that the allegations in Annexure 2 will not takes in the ingredients of the offences alleged against the petitioners and that the power under Section 482 Cr.P.C could be exercised to prevent abuse of process of the court or otherwise to secure the ends of justice by quashing Annexure 2 and the proceedings initiated as C.C.No.1407/2012 on the files of Judicial First Class Magistrate Court I, Palakkad. 12. On the contrary, Sri.V.V.Asokan, the learned counsel representing the 2[nd] respondent, the defacto complainant has submitted that the materials available in the case diary would satisfactorily disclose the commission of the offences, for which the petitioners were chargesheeted as per Annexure 2 and the exercise of Crl.M.C.No.4718 of 2013 10 inherent jurisdiction under Section 482 Cr.P.C to quash the proceedings is totally unwarranted in the matter. 13. The learned Public Prosecutor has submitted that sufficient materials are there in the case diary and based on those, the Walayar Police has laid Annexure 2 upon which basis the learned Magistrate has taken cognizance of and numbered the case as C.C.No.1407/2012. According to her interference of the same is unwarranted. 14. In the light of the rival submissions made by the respective counsel, this Court has to see whether Annexures 1 and 2, respectively the FIR and the final report and C.C.No.1407/2012 taken on file by the Judicial First Class Magistrate Court I, Palakkad will prima facie sustain or not. Before adverting to the sustainability of the offences, it is relevant to have a look at Annexure 1, the part of which is extracted hereunder for convenient reference. "പ�ലക�ട� ത�ലക� പതശ�ര� പഞ�യത� വ�ളയ�ർ പത�ന�ല��കല� എന സലത� ഈ ശകസ�ലല അന!�യക�രൻ മ�ശനജ�ങ� ടസ�യ�യള V.N. പബ�ക� ല+ൽത� ആന� എഡ0ശകഷൻ ടസ�ൽ 1 മതൽ 6 കട�യ പത�കൾ ലമമർമ�ർ ആയ�ര�ലക അന!�യക�രലന അറ�ശവ� സമതശമ� കട�ലത ശ:�ർഡ�ലന ന�യമനടപട�ക� അന!�യക�രലന ഉൾല<ടത�ലത 21/07/2005 ത>യത� മതൽ 1 മതൽ 6 കട�യ പത�കൾ ശ?ർന� 1-ആ� പത�ലയ ശമൽ<ട� ടസ�ലന ലസകടറ�യ�യ� ന�യമ�ച� സ�പനത�ലന ശപര� V.N.P. ലമഡ�കൽ ശക�ശളജ� എനത�ന പകര� ഉടയ< ലമഡ�കൽ ശക�ശളജ� അന� ശ+�സ<�റൽ എന ശപരണ�ക� സ�പനത�ന� 15 ലക� രപയലട കട:�ധ!തയണ�ക� സ�പനത�ശലക� ഗണന�ലവ�രമ�ല�തത�യ സ�ധന സ�മഗ�കൾ വ�ങ�യ� വ�സവ വ�രദമ�യ പതപരസ!� ലക�ടത� അർ+തയ�ല�തവലര ശജ�ല�ക�ര�യ� ന�യമ�ച� സ�പനശതയ� അന!�യക�രലനയ� പത�കൾ അവ�+�തമ�യ� കകയടക� വഞന�പരമ�യ� വസവ+കലള ദർവ�ന�ശയ�ഗ� ല?യ� കകമ�റ�ധ�രലത കപടമ�യ� എഴത� ആദ�യലത അന!�യ നഷ� ഉണ�ക� ആൾമ�റ�ട� ല?യ� പത�കൾ ഒലത�രമ�ച� Crl.M.C.No.4718 of 2013 11 കട�യ� കറ� ല?യനത�ന� ഉത�+�ച� വ�ശ_�സവഞനയ� ?ത�യ� ല?യ� എന� മറമള ക�ര!�.” ## 15. It is also relevant to extract the material part of Annexure 2 hereunder. “08/11/1995 ത>യത� 1-ആ� സ�ക� ല?യർമ�ന�യ� തമ�ഴ�ട� ഈശറ�ഡ� ജ�ല� രജ�സ�ർ ഓഫ>സ�ൽ 1134/95 നമർ ആയ� V.N. Public Health and Education Trust രജ�സർ ല?യ� പവർത�ച� വരലവ 21/07/2005-ന� തമ�ഴ�ട� ശതന� സ:� രജ�സ�ർ ഓഫ>സ�ൽ supplement deed No. 535BK4 ആയ� 1-മതൽ 6 കട�യ പത�കലള ലമമർമ�ര�യ� അത�ൽ 1-ആ� പത�ലയ ലസകടറ�യ�യ� ന�യമ�ച� പവർതന� നടത�വരലവ ക:ശല�ക� വ�രദമ�യ� ടസ� മ>റ **�** ഗ� കട� ത>രമ�നലമടക�ലതയ� ടസ�ലന ശപര�ലള പതശ�ര� പഞ�യത�ൽ ഈസ� വ�ശലജ�ൽ വ�ളയ�ർ 14-)0 കല� എന സലതള വസവകകള�ൽ മത�യ�യ അനമത�ശയ� ശരഖകശള�, മത�യ�യ ഗണന�ലവ�രശമ� ഇല�ലത :�ൽഡ��ഗ� ന�ർമ�ച� സ_ന� ത�ലര!പക�ര� ജ>വനക�ലര ന�യമ�ച� 1-ആ� പത�യലട അചലന ശപര�യ ''ഒഡയ<'' എന ശപര�ൽ ഒഡയ< ലമഡ�കൽ ശക�ശളജ� ആന� ആശപത� എന ശപര�ൽ തടങ� പവർത�ച� ടസ� ല?യർമ�ന�യ 1-ആ� സ�ക� ഉൾല<ലട മറ ലമമർമ�ർക� :�ധ!തകൾ വരത� ലവച� 1-മതൽ 6-വലര പത�കൾ കറ� ല?യണലമന ഉശദശശത�ലട വ�ശ_�സവഞന ല?യ� വഞന�പരമ�യ� വസവകകലള കകവശ� ലവച� സ�പനത�ന� ല�ഭ� ഉണ�ക�ൻ ചമതലല<ട 1-ആ� പത� നഷ� ഉണ�കലമന അറ�ശവ�ലടയ� പത�ഫലലത<റ� കളവ�യ� ശരഖകൾ ഉണ�ക�യ�, ശ:�ർഡ�ൽ മത�യ�യ അ�ഗസ�ഖ! ഇല�ത സ�+?ര!ത�ൽ ഉളത�യ� ആൾമ�റ�ട� ല?യ� വ�ശ_�സവഞന ല?യ� ?ത� ല?യ�ടളത�യ� പത�കൾ പരസര� കറ� ല?യനത�ന� ഉൽസ�+�<�ച�ടളതമ�യ�ടളത�യ�ര�കയ�ൽ പത�കൾ ശമൽ വകപകൾ പക�ര� ശ�ക�ർ+മ�യ കറ� ല?യ�ര�കന എന�.” 16. As per the allegations in Annexures 1 and 2, it is found that the petitioners have transacted the business as alleged in those documents behind the back of the defacto complainant. The specific allegations levelled against the petitioners are that they had constructed a building at a place called Pathinalamkallu in East Crl.M.C.No.4718 of 2013 12 Walayar Village of Puthussery Panchayat, in a property belonging to the Trust without arriving at a decision in the trust meeting and against the bye-laws, using materials without quality. It is also alleged that after constructing the building they had appointed employees therein on their own interest and named the building as Odayappa Medical College and Hospital and started its functioning. It is also alleged that by doing so, the petitioners had cheated the defacto complainant and the Trust and thereby made unlawful enrichment. Before adverting to the allegations, it is relevant to have a look at Annexure 3, which is nothing but V.N Public Health and Educational Trust Ratification Deed, ratifying the Supplement Deed (Codicil). Annexure 3 starts with the wordings “ _Whereas, by deed of declaration of Trust, dated 20.10.1995, a Trust by name 'V.N. Public Health and Educational Trust' was established for the purposes and objects set forth therein._ _And whereas the following six persons, the executants of this Deed, were originally appointed as Trustees of the Trust, and of them No.1 & 2 of us were designated as Managing Trustees for lifetime._ ” 17. Item Nos.1 and 2 include the 2[nd] respondent herein P.Nandagopal, one among the managing trustees for life time. It is incorporated in the third page of Annexure 3, as follows: “And whereas, the Trust was desirous of establishing a Crl.M.C.No.4718 of 2013 13 Medical College in Walayar, Palakkad in the public interest and accordingly applied there for. And whereas, the Government of Kerala, on careful consideration of the proposal of the Trust, issued Essentiality Certificate (No.37489/S3/2003/H & FWD, Department of Health dated 24.1.2004) for the years 2003-2004 & 2004-2005 for the establishment of a Medical College with 100 seats and gave an undertaking to take over the responsibility of the students, admitted in the college already, with the permission of the Central Government, if the Trust failed to create infrastructure for the Medical College as per the Medical Council of India norms and fresh admissions are stopped by the Central Government.” 18. The essentiality certificate referred to in the extract above was obtained in the name of VN Trust, in the year 2004. Later on, another essentiality certificate, a copy of which is appended to the proceedings on hand as Annexure 4 was obtained by Dr.O.Kannappan, in his capacity as the Managing Trustee Secretary of V.N Public Health & Educational Trust on 28.6.2008. The conferment of the authority is contained in the following terms in Annexure 3 extracted hereunder: “ii) It was further resolved that (a) Dr.P.Nandhagopal (b) Mrs.Saroja, (c) Mr.N.Selvakumar (d) Mrs.Dr.Kumaradevi (e) Mrs.Birundha (f) Mrs.Geetha, shall be Founder Trustees and (g) Dr.O.Kannappan (h) Mrs.K.Shanthi (i) Mr.K.Odayappan (j) Ms.K.Alamelu (k) Mr.M.Thiyagarajan and (l) Mr.V.Sundaram, shall be the Working Trustees and either team shall have a Managing Trustee. (iii) It was further resolved that, D.P.Nandhagopal and Dr.O.Kannappan are the Managing Trustees. vi) It was further resolved that, among the two Managing trustees, founder team Managing Trustee shall be the Chairman and Crl.M.C.No.4718 of 2013 14 working team Managing Trustee shall be the Secretary to the Board of Trustees. xi) It was further resolved that, all the financial transactions and Bank Account operations shall be made only by Managing Trustee-Secretary, appointed from the Working Trustees and no others. xii) It was further resolved that, the Managing TrusteeSecretary appointed from the Working Trustees alone is the competent person to borrow money and execute documents on behalf of the Trust and no others. xiii) It was further resolved that, the Working Trustees alone are empowered to administer the trust and the institutions established by it and their activities and the Founder Trustees shall not interfere but entitled only to discuss about them in the meeting of the Board of Trustees. xiv) It was further resolved that, the Managing Trustee Secretary, appointed from the Working Trustee shall be the correspondent of the institutions established by the Trust and no others.” ( _emphasis supplied)_ 19. It is evident from the aforesaid extract that all financial transactions and bank account operations of the Trust shall be made only by the Managing Trustee Secretary appointed from the working trustees and no others. It is also evident therefrom that the Managing Trustee Secretary appointed from the working trustees shall be the correspondent of the institution appointed by the trust and no others. It is also made clear by the provisions that the working trustees alone are empowered to administer the trust and the institutions established by him and its activities and the Founder Trustees shall not interfere with, but entitled only to discuss about Crl.M.C.No.4718 of 2013 15 them in the meeting of the Board of Trustees. It is clear from page 5 of Annexure 3 that the 1[st] petitioner, Dr.O.Kannappan listed therein as Sl.No.13, is the Managing Trustee Secretary of the Trust and is entitled to the administration, commencement of the construction works towards the establishment of Medical College, which was in progress involving huge expenditures. Therefore, the the first petitioner has every authority to apply for and obtain the essentiality certificate (Annexure 4) and to get the construction work of the Medical College done. It is also provided in Anneuxre 3 that the Founder Trustees including the defacto complainant shall refrain from interfering with any of the activities as aforementioned but have only a right to discuss about those in the meeting of the Board of Trustees. 20. This Court had a glance also at the discussion made by the learned counsel for the petitioners in that regard. The learned counsel has drawn my attention to paragraph 9 of **S.N.Palanitkar's** case **,** which is extracted hereunder for convenient reference. “9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust.” 21. It is clear from the above that, to attract the offence under Crl.M.C.No.4718 of 2013 16 Section 405 IPC, alleged against the petitioners, the allegations against them must incorporate the following ingredients: “(i) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust.” 22. From the part of Annexure 2 extracted supra, it is seen that the petitioners are members of the working trustee and they have been authorised to administer the trust and transact the affairs of the trust. The prosecution has not succeeded in furnishing materials to establish that the property wherein the construction work of Medical College building is being done was dishonestly misappropriated or converted for their own use by the petitioners. The allegations do not also attract the ingredients of the offence that they have dishonestly used or disposed of that property and thereby wilfully caused the defacto complainant and others to suffer, against the spirit and intention of the Trust. On the contrary, it is evident from Annexure 3 that the petitioners were authorised to transact the affairs dealt with in Annexure 2 and based on authority they have transacted the same. Therefore, to any stretch of imagination, the offence under Section 405 IPC will not be attracted against the Crl.M.C.No.4718 of 2013 17 petitioners from the allegations made by the defacto complainant in Annexure 2. 23. The offence of cheating is the second offence alleged against the petitioners in Annexure 2, which is defined under Section 415 IPC. In order to attract the offence under Section 415 IPC, the ingredients necessary are (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be 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 so or 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), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 24. The first and foremost ingredient to attract the offence under Section 415 IPC was that there must be deception at the very inception of the transaction. Only when the person transacting the business has intention to deceive the other and the person who was so deceived had parted with anything valuable to his detriment then alone offence under Section 415 IPC would be attracted. In the case on hand from the materials furnished by the prosecution available alongwith the records, it could be seen that none of the ingredients of any of the offences alleged as aforesaid are attracted in the case on Crl.M.C.No.4718 of 2013 18 hand. The petitioners have obtained the essentiality certificate and started construction of the building as per the authority conferred on them by the Trust and therefore an element of deception cannot be drawn so as to amount to cheating. 25. Annexure 2 also incorporates an offence under Section 416 IPC. It is relevant to extract the offence as defined under the Indian Penal Code hereunder: **“416. Cheating by personation:-** A person is said to “cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation-The offence is committed whether the individual personated is a real or imaginary person.” 26. In order to attract the above offence the person who is alleged to have cheated by impersonation must have pretend to be some other person or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person. In the case on hand the materials in Annexure 2 are highly insufficient to attract the ingredients of the offence of cheating by personation as the petitioners have not transacted in the manner as stated under Section 416 IPC. 27. In view of the discussion made hereinabove, it is pertinent to note that the materials furnished by the prosecution are Crl.M.C.No.4718 of 2013 19 inadequate to attract the ingredients of the offences for which the petitioners are chargesheeted by Annexure 2. There is absolutely no basis for Judicial First Class Magistrate Court I, Palakkad to take cognizance of Annexure 2 and to receive it on file as C.C. No.1407/2012 to proceed against the petitioners. In the absence of allegations in Annexure 2 to attract the ingredients of the offences alleged against the petitioners, the Walayar Police ought not to have prepared and submitted the final report and the learned Magistrate ought not to have taken cognizance thereof. It is seen that the final report was submitted by the Walayar Police and congnizance was taken by the learned Magistrate without sufficient and satisfactory materials. 28. In **State of Hariyana's** case **(** supra) cited by the learned counsel, inherent power under Section 482 Cr.P.C could very well be invoked by this Court to prevent abuse of process of court or to secure the ends of justice. 29. In the case on hand, as already stated, the petitioners have transacted the affairs of the Trust based on valid authority conferred on them and if they were made to face the trial, that would clearly be an abuse of process of court. It would only lead to consumption of time by the trial court unnecessarily in the matter. The proceedings in civil cases pending and the orders passed by civil court in the respective proceedings as stated supra would indicate that the Crl.M.C.No.4718 of 2013 20 respondent has initiated those frivolously and vexatiously with a view to harass the petitioners. In the above circumstances, to secure ends of justice, the prosecution initiated against the petitioners is required to put an end to. 30. In the said circumstances, Annexure 2 and C.C.No.1407/2012, which has been taken on file by the Judicial First Class Magistrate Court I, Palakkad on its basis and all further proceedings initiated thereto, are liable to be quashed in exercise of the inherent jurisdiction under Section 482 Cr.P.C. In the result, Annexure 1 FIR, Annexure 2 final report and all further proceedings in C.C.No.1407/2012 pending before Judicial First Class Magistrate I, Palakkad are quashed forthwith. The Crl.M.C. is allowed as above. Sd/- ## **MARY JOSEPH** **Judge** ab Crl.M.C.No.4718 of 2013 21 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE 1** **A CERTIFIED COPY OF THE FIR REGISTERED WITH THE WALAYAR POLICE STATION AS CRIMCE NO.302/2008 DATED 07.10.2008.** - **ANNEXURE 2 A CERTIFIED COPY OF THE FINAL REPORT SUBMITTED BY THE WALAYAR POLICE IN CRIME NO.302/2008 DATED 16.06.2009.** - **ANNEXURE 3 A TRUE COPY OF THE ABOVE SAID RATIFICATION DEED DATED 21.07.2005.** - **ANNEXURE 4 A TRUE COPY OF THE ESSENTIALITY CERTIFICATE ISSUED BY THE GOVERNMENT OF KERALA TO THE 1ST PETITIONER DATED 28.06.2008.** - **ANNEXURE 5 A TRUE COPY OF THE ORDER PASSED BY THE LEARNED MUNSIFF, PALAKKAD IN I.A.NO.1738/2008 IN O.S.NO.283/2008 DATED 15.07.2008.** - **ANNEXURE 6 A TRUE COPY OF THE ORDER PASSED BY THE LEARNED MUNSIFF COURT, PALAKKAD IN I.A.NO.1740/2008 IN O.S.NO.283/2008.** - **ANNEXURE 7 A TRUE COPY OF THE ORDER IN I.A.NO.861/2009 IN O.S.NO.238/2008 DATED 12.03.2009.** - **ANNEXURE 8 A TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO.2288/2011 DATED 11.02.2011.** ## **RESPONDENT'S/S EXHIBITS: : NIL** //TRUE COPY// P.A. TO JUDGE