Kuriachan and Meena Varghese v. State of Kerala and Eldhose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941** **Crl.MC.No. 4083 of 2015** **AGAINST THE ORDER IN CMP 26/2015 of JUDICIAL MAGISTRATE OF FIRST CLASS ,KOLENCHERRY DATED 25-02-2015** ## **C.C.NO.243/2015 of JUDICIAL MAGISTRATE OF FIRST CLASS ,KOLENCHERRY** ## **PETITIONERS/ACCUSED:** **1 KURIACHAN AGED 48 YEARS S/O.VARGHESE, PADINJAREVALAMKOTTU HOUSE, KUZHOOR KARA, IRAPURAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM.** **2 MEENA VARGHESE AGED 42 YEARS W/O. KURIACHAN, PADINJAREVALAMKOTTU HOUSE, KUZHOOR KARA, IRAPURAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM.** **BY ADVS. SRI.S.RENJITH SRI.S.UNNIKRISHNAN (NELLAD)** ## **RESPONDENT/RESPONDENT:** - **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 ELDHOSE AGED 29 YEARS S/O.MATHEW, POMACKAL HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK-683 545** **BY ADVS. SRI.GIGIMON ISSAC FOR R2 SRI.A.K.JAYAPRAKASH FOR R2 SMT.M.N.MAYA PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON 31.05.2019 PASSED THE FOLLOWING:** Crl.M.C.No.4083/2015 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.4083 of 2015 ---------------------------------------------- Dated this the 31[st] day of May, 2019 ## **O R D E R** The petitioners are the accused in the case C.C.No.243/2015 on the file of the Court of the Judicial First Class Magistrate, Kolencherry. The aforesaid case is instituted on the basis of the complaint filed by the second respondent against the petitioners. The prayer in this petition is to quash the complaint (Annexure A1) 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 material averments in the complaint filed by the second respondent (hereinafter referred to as 'the complainant') against the petitioners are as follows: On 24.01.2011, the petitioners and the complainant entered into an agreement for sale of land having an extent of 40 sq.metres. As per the agreement, the petitioners had agreed to sell the land to the complainant within thirty days for a consideration of Rs.85,000/-. At the time of the agreement, the complainant paid an amount of Rs.40,000/- to the petitioners as advance towards sale consideration. He paid the balance amount of Crl.M.C.No.4083/2015 3 Rs.45,000/- to the petitioners on 24.02.2011. However, the petitioners did not execute and register sale deed in respect of the land in favour of the complainant. Thus, the petitioners have committed the offences punishable under Sections 406 and 420 read with 34 I.P.C. 3. Learned Magistrate recorded the statement of the complainant and the witnesses and found that there was sufficient ground to proceed against the petitioners for committing the offence punishable under Section 420 I.P.C and numbered the case as C.C.No.243/2015. 4. Heard learned counsel for the petitioners and the learned Public Prosecutor and also the learned counsel for the second respondent/complainant. 5. Learned counsel for the petitioners contended that, even if the entire allegations in the complaint are accepted as true, it cannot be found that the petitioners have committed an offence punishable under Section 420 I.P.C. Learned counsel has contended that failure of the petitioners to execute and register sale deed in favour of the complainant amounts to only a breach of promise or contract and the dispute between the parties is purely of a civil nature. Learned counsel has contended that the dispute is given the colour of a Crl.M.C.No.4083/2015 4 criminal offence by the complainant and therefore, continuation of the proceedings against the petitioners would be an abuse of the process of court. 6. On the other hand, learned counsel for the second respondent/complainant pointed out that it is a case in which the petitioners had received the entire amount of sale consideration but failed to execute sale deed in respect of the property in favour of the complainant. Learned counsel has contended that the act of the petitioners constitutes an offence punishable under Section 420 I.P.C. 7. The allegation against the petitioners is that they have committed the offence punishable under Section 420 I.P.C. It would thus be necessary to examine the ingredients of the above offence and whether the allegations made in the complaint, read on their face, attract that offence. ## 8. Section 415 of the Indian Penal Code reads as follows: _"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,_ Crl.M.C.No.4083/2015 5 _reputation or property, is said to "cheat"._ 9. 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. 10. Section 420 of the Indian Penal Code reads as follows: _"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."_ ## 11. The ingredients to constitute an offence under Section 420 Crl.M.C.No.4083/2015 6 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 the offence under Section 420 I.P.C. 12. 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. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. 13. In the instant case, there is no averment in the complaint that the petitioners had any dishonest intention at the time of execution of the agreement or at the time when they received the balance amount of sale consideration from the complainant. There is nothing to indicate or show that at the time when the petitioners entered into the agreement for sale of property, their intention was Crl.M.C.No.4083/2015 7 dishonest or fraudulent. 14. At this juncture, it is pertinent to note that immediately after the filing of the complaint, the complainant had instituted a suit as O.S.No.44/2014 in the Munsiff's Court, Perumbavoor for granting a decree for specific performance of the agreement for sale. The dispute between the parties is essentially of a civil nature. The complainant has given the cloak or colour of a criminal offence to the dispute. 15. A complaint disclosing civil transactions may also have a criminal texture. What is to be considered is whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available, this Court should not hesitate to quash criminal proceedings to prevent abuse of process of court (See **Paramjeet Batra v. State of Uttarakhand: (2013) 11 SCC 673** ). 16. It is also pertinent here to note that the dispute between the parties has been settled subsequent to the filing of the petition under Section 482 of the Code before this Court. Learned counsel for the petitioners has made available, for perusal of the Court, a copy of the award passed by the Lok Adalath in the suit instituted by the complainant against the petitioners. The award of the Lok Adalath shows that the dispute between the parties was settled in the Adalath Crl.M.C.No.4083/2015 8 held on 22.07.2016 and the suit was disposed of on the basis of the compromise entered into between the parties. 17. In the aforesaid circumstances, continuation of the proceedings against the petitioners in the criminal case would be an abuse of the process of court. The criminal proceedings against the petitioners are liable to be quashed. Consequently, the petition is allowed. All proceedings against the petitioners in the case C.C.No.243/2015 on the file of the Court of the Judicial First Class Magistrate, Kolencherry are hereby quashed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/29/05/2019 Crl.M.C.No.4083/2015 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE P1 ANNEXURE A1 : CERTIFIED COPY OF THE COMPLAINT SUBMITTED BY THE RESPONDENT BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT, KOLENCHERRY IN CC.NO.243/2015.** - **ANNEXURE P2 ANNEXURE A2 : COPY OF THE AGREEMENT BETWEEN THE PETITIONERS AND THE 2ND RESPONDENT DATED 24-1-2011.** - **ANNEXURE P3 ANNEXURE A3 : COPY OF THE PLAINT IN OS.NO.44 OF 2014 BEFORE THE NON'BLE MUNSIFF COURT, PERUMBAVOOR.** - **ANNEXURE P4 ANNEXURE A4 : COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN OS.NO.44 OF 2014 BEFORE THE HON'BLE MUNSIFF COURT, PERUMBAVOOR** - **ANNEXURE P5 ANNEXURE A5 : COPY OF THE SWORN STATEMENT OF THE 2ND RESPONDENT BEFORE THE MAGISTRATE COURT, KOLENCHERY.** - **ANNEXURE P6 ANNEXURE A6 : COPY OF THE ORDER DATED 25-22015 IN CMP.NO.26 OF 2015 OF JUDICIAL 1ST CLASS MAGISTRATE COURT, KOLENCHERY.** RESPONDENT'S EXHIBITS: NIL TRUE COPY PS TO JUDGE