Kunhu Hydru and Abdullakutty v. State of Kerala and P.S. Ismayil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936** **Crl.MC.No. 279 of 2013 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 21/2010 of J.M.F.C.-I MUVATUPUZHA. CRIME NO. 1831/2009 OF MUVATTUPUZHA POLICE STATION , ERNAKULAM** **PETITIONER(S)/ACCUSED 1 & 2 :** - **----------------------------** **1. KUNHU HYDRU, AGED 83 YEARS, S/O. VEERANKUTTY, KAIPPILLI HOUSE, KUTTIPURAM VILLAGE, KUTTIPURAM.P.O., MALAPPURAM DISTRICT.** **2. ABDULLAKUTTY AGED 40 YEARS, S/O. KUNHU HYDRU, KAIPPILLI HOUSE, KUTTIPURAM VILLAGE, KUTTIPURAM.P.O., MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.VENUGOPAL (1086/92) SRI.M.REVIKRISHNAN** ## **RESPONDENT(S)/DEFACTO COMPLAINANT & STATE :** **------------------------------------------** **1. P.S.ISMAYIL, S/O. SANDU MUHAMMED, KAVUMKARAPALATHINKAL HOUSE, VELLURKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 661.** **2. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 081.** **R1 BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SRI.K.V.REJANISH SMT.P.M.HRIDYA SRI.R.VINU RAJ R2 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 279 of 2013 ()** **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **ANX.A CERTIFIED COPY OF COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MUVATTUPUZHA. ANX.B CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 1831/2009 OF MUVATTUPUZHA POLICE STATION. ANX.C TRUE COPY OF THE AGREEMENT DATED 7-12-2004 ENTERED BETWEEN THE 1ST RESPONDENT AND SON OF THE 1ST ACCUSED.** **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.279 of 2013 -----------------------------------------------Dated this the 2[nd] day of July, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. The complaint filed by the first respondent in this matter against the petitioners before the learned Magistrate was forwarded to police under Section 156(3) Cr.P.C. After completing the investigation, they filed a final report. Annexure A is the complaint and Annexure B is the final report. The final report reveals offences against the accused punishable under Section 420 r/w Section 34 I.P.C. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 3. Gist of allegations in the complaint is thus : The complainant is engaged in ration wholesale business. He was dealing with kerosene for a long time. In 2004, the accused persons approached him for technical and financial help for conducting a similar business in which they had failed. On 07-12-2004, an agreement was executed between the **Crl.M.C No.279 of 2013 2** complainant and the accused persons. The complainant had paid a sum of `3,00,000/- as security for running the business. Due to obstructions created by the second accused, the business could not be run and the complainant suffered loss. Even though he repeatedly asked the accused to return the security deposit, they did not do so. Finally on 17-08-2009, the second accused handed over a cheque to the complainant purported to be signed by the first accused. When the cheque was presented for collection, the complainant came to know that it was drawn on an account which was closed much earlier. Therefore, he could not realise the amount as per the cheque. According to the complainant, the accused persons have committed cheating by issuance of a cheque towards a closed account. 4. Learned counsel for the petitioners submitted that the entire allegations in the complaint would not reveal an offence under Section 420 I.P.C. According to him, there is no averment in the complaint that the accused persons ever intended to cheat the complainant. It is also submitted that mere issuance of a **Crl.M.C No.279 of 2013 3** cheque to a closed account will not constitute an offence of cheating defined under Section 415 I.P.C. 5. In order to buttress the contention, learned counsel for the petitioners strongly relied on a decision of this court in _**Chandran K v. Ponnappa Moothan and Another**_ ( _**2012(4) K.H.C 213).**_ After considering the definition of cheating under Section 415 I.P.C, the learned Single Judge held as follows : _“ The cheating alleged in this case is regarding the issuing of Ext.P1 concealing the fact that it was drawn on a closed account. Since Ext.P1 cheque was issued in discharge of a so called existing debt, the concealing that the account was closed at the time when the cheque was issued would not satisfy the requirement of the definition of cheating under Section 415 IPC because there is no deception following the concealing. No damage or harm to the 1[st] respondent in body, mind, reputation or property was caused due to the concealing of the fact that the account was closed._ **Crl.M.C No.279 of 2013 4** _There is no evidence to show that the 1[st] respondent sustained any harm or loss other than the inability to recover the debt which was when Ext.P1 was existing issued.”_ 6. It is relevant in this context to extract the definition of cheating under Section 415 I.P.C with an illustration (g) thereunder : _“_ _**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”._ _Explanation.- A dishonest concealment of facts is a deception within the meaning of_ **Crl.M.C No.279 of 2013 5** _this section._ _(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.”_ 7. It is evident that in order to attract the offence of cheating, there must be an allegation that deception had been practised on the complainant by making him believe that the accused persons would facilitate the running of business without any hindrance and also that they had an intention to deceive the complainant at the very beginning. Merely because after five years, a cheque had been issued to a closed account, it cannot be stated that the accused had an intention to cheat the complainant **Crl.M.C No.279 of 2013 6** at the inception of the transaction. There must be positive averments to that effect. 8. Learned counsel for the petitioner relied on a decision in _**M.S.Muraleedharan v. P.S.Vijayakumar (2006 K.H.C 1020)**_ to argue that the accused must have had the intention at the initial stage of transaction and they must have been induced the complaint for delivering any property etc. as mentioned in 415 I.P.C. On a careful reading of the complaint, it is not discernible therefrom that the accused ever intended to cheat the complainant at the commencement of the transaction. 9. Totality of the pleadings in the complaint would take me to an irresistible conclusion that the essential ingredients of Section 415 I.P.C have not been pleaded. The precedents mentioned above would show that merely for the reason a cheque was issued in discharge of a legally enforceable debt towards a closed account will not _ipso facto_ attract an offence of cheating under Section 420 I.P.C. Therefore, I find that the continuation of the proceedings is an abuse of the process of the **Crl.M.C No.279 of 2013 7** court. In the result, the Crl.M.C is allowed. Annexure B final report in crime No.1831/2009 of Muvattupuzha Police Station is hereby quashed. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** amk