Lakshmy Dinesh and K.R. Nagendran v. Diraviam Dinesh and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 18[TH] DAY OF JUNE 2021 / 28TH JYAISHTA, 1943 CRL.MC NO. 1666 OF 2018** **CRIME NO.1881/2013 OF Palakkad Town South Police Station,** ## **Palakkad** **AGAINST THE ORDER/JUDGMENT IN CC 63/2014 OF CHIEF JUDICIAL MAGISTRATE PALAKKAD, PALAKKAD** ## **PETITIONER/S:** 1 LAKSHMY DINESH AGED 26 YEARS AGED 26 YEARS, W/O. DIRVIAM DINESH,323, SRI SAI NILAYAM, 1ST CROSS,NEW BANK COLONY, KONANAKUNTE, BANGLORE - 560 078. 2 K.R. NAGENDRAN AGED 70 YEARS AGED 70 YEARS, 323, SRI SAI NILAYAM, 1ST CROSS,NEW BANK COLONY, KONANAKUNTE, BANGLORE - 560 078. BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.AJEESH K.SASI SRI.C.JAYAKIRAN SMT.MITHA SUDHINDRAN SMT.POOJA PANKAJ SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.V.C.SARATH SRI.VIPIN NARAYAN ## **RESPONDENT/S:** 1 DIRAVIAM DINESH APARNA RESIDENCY TOWER,CHITOOR ROAD, NEAR LAKSHMI HOSPITAL,KUNNATHURMEDU P.O., PALAKKAD - 678 013. Crl.MC 1666/2018 2 - 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM - 682 031. R1 BY ADV DIRAVIAM DINESH(Party-In-Person) R2 BY SMT.M.K.PUSHPALATHA, PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.MC 1666/2018 3 ## O R D E R Dated, this the 18[th] day of June, 2021 [Crl.M.C. 1666 of 2018] This is an application filed by accused 1 and 2 in CC No.63/2014 on the files of the Court of the Chief Judicial Magistrate, Palakkad for quashing the proceedings in the aforesaid case under Section 482 of the Cr.P.C. 2. The petitioners are daughter and father, who are accused of having committed offences punishable under Sections 417, 419 and 420 of the Indian Penal Code. The 1st respondent, who is the de facto complainant, had filed Annexure A private complaint, before the Magistrate and the same was forwarded to the Station House Officer, Town South Crl.MC 1666/2018 4 Police Station, Palakkad, resulting in registration of Crime No.1881/2013, and after investigation Annexure B final report was filed for an offence punishable under Section 417 of the I.P.C. The learned Magistrate, however, took cognizance for offences under Sections 417, 419 and 420 I.P.C and took the matter on file as CC No.63/2014 and issued summons to the petitioners. 3. The prosecution case, in brief, as stated in the final report (Annexure B) is that on 01/07/2012, the accused had without the knowledge and consent of the de facto complainant obtained Annexure-C birth certificate of the 2[nd] child born to the 1[st] petitioner in her wedlock with the 1[st] respondent, after producing a photocopy of his passport, and Crl.MC 1666/2018 5 subscribing his forged signature on the application. The petitioners contend that the criminal complaint was filed as an offshoot to the matrimonial disputes between the parties. It is stated that the offence under Section 417 I.P.C is not attracted. And there was no fraudulent or dishonest intention on the part of the petitioners inducing the complainant to deliver any property. There is also no dispute that the 1[st] petitioner and the 1[st] respondent are the biological parents of the child. In fact, the petitioners have not gained anything unlawfully by the alleged act. The intention of the 1st respondent is only to harass and humiliate the petitioners and hence they seek to quash the proceedings under Section 482 Cr.P.C. 4. The 1[st] respondent entered appearance in person Crl.MC 1666/2018 6 and filed a counter affidavit claiming that he is a Medical Research Scientist of international repute and is presently practicing as an Advocate before the Madras High Court. It is stated that the 1[st] petitioner got married to the 1[st] respondent on 20/08/2004. Two children are born in that wedlock. The 1[st] respondent was ill treated by the petitioners and he was driven out of the house. The petitioners had even denied the 1[st] respondent's paternity of the 2nd child born to the 1[st] petitioner. On 10/05/2012, the 1[st] respondent, even send a letter to the officer concerned at the Palakkad Municipality and submitted that he has strong protest in the petitioners action to register the birth of the 2[nd] child without his consent by using his identification document. However, he has admitted Crl.MC 1666/2018 7 that the child was born to him on 15/04/2012. On contacting the Registrar of Births and Deaths, Palakkad Municipality, he came to know that the petitioners had got the birth of the 2[nd] child registered after producing a photo copy of the 1[st] respondent's passport, which had by then, expired and his shock he found that his signature has been forged in the application. The 2[nd] petitioner who is a retired Deputy Director of College Education had collected the birth certificate and it is also understood that he had conspired with the 1[st] petitioner, his daughter, to commit the aforesaid offence of cheating and forgery. Though the 1[st] respondent had filed a complaint before the Town South Police, Palakkad, no action was taken owing to the influence of the petitioners. Consequently, he Crl.MC 1666/2018 8 was forced to file a private complaint before the Court of the Chief Judicial Magistrate, which is the subject matter of this Crl. MC. It is further stated that the 1[st] petitioner is involved in another crime registered against her for obtaining a fake transfer certificate from a school in Chennai for her elder daughter and consequent to the complaint that was filed by the 1[st] respondent, the crime was registered, and presently pending trial as CC No. 257 of 2014 before the Judicial Magistrate's Court, Tambaram. The attempt made by the 1st petitioner to quash the proceedings in the aforesaid case did not succeed before the High Court of Madras. The 1[st] petitioner had even made attempt to indicate that the child belong to the Scheduled Caste, in order to claim the benefits Crl.MC 1666/2018 9 illegally. The High Court of Madras had while disposing of Writ Petition No. 28352/2017, found that the 1[st] petitioner herein had obtained a fake Transfer Certificate from the Chennai school, indicating that her daughter belongs to the Scheduled Caste. Under the circumstances, it is submitted that the petitioners have no right to get the proceedings quashed under Section 482 of the Cr.P.C. 5. In State of Karnataka v. L. Muniswamy and others [1977 (2) SCC 699] , the Apex Court has said that in the exercise of the wholesome power under S.482 of the Code, High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice Crl.MC 1666/2018 10 require that the proceedings are to be quashed. Jurisdiction under S.482 of the Code, no doubt, has to be exercised with a great care. In exercise of its jurisdiction, this Court is not supposed to examine the matter superficially. It is to be seen if a matter, which is essentially a litigation to settle scores or to weak vengeance, has been given a cloak of criminal offence. Criminal proceedings cannot be used as an instrument to harass the opponents. Before issuing process, a criminal court has to exercise a great deal of caution. For the accused, it is a serious matter. The Supreme Court has laid certain principles on the basis of which, the High Court is to exercise its jurisdiction under S.482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of Crl.MC 1666/2018 11 any court or otherwise to secure the ends of justice. 6. Section 482 of Code of Criminal Procedure saves the inherent power of the High Court to make orders necessary to secure the ends of justice. In Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736] , the Apex Court reviewed the precedents on the exercise of jurisdiction under S.482 of the Code of Criminal Procedure, 1973 and formulated guiding principles as thus: "12. xxxx xxxx xxxx (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor Crl.MC 1666/2018 12 a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides / malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the Crl.MC 1666/2018 13 offence. (v) xxxx xxxx xxxx" (emphasis supplied) It would be profitable to examine the penal provisions relied upon in the instant case. Section 415 of the 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 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"." 7. In Vijayasarathy R. K. (Prof) and Another v. Sudha Crl.MC 1666/2018 14 Seetharam and Another [2019 KHC 6181 : 2019 (2) KHC SN 16 : 2019 (3) SCALE 563] , the ingredients to constitute an offence of cheating are described 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. A person who dishonestly induces another person to deliver any property is liable for the offence of Crl.MC 1666/2018 15 ## cheating.” The other provision is S.420 of the Penal Code which reads thus: "420. Cheating and dishonestly inducing deliver 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 to 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." 8. In Vijayasarathy R. K. (Prof) and Another (supra), the ingredients to constitute an offence under S.420 are enumerated as follows: Crl.MC 1666/2018 16 “i) A person must commit the offence of cheating under S.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. Cheating is an essential ingredient for an act to constitute an offence under S.420.” 9. The vicious mentality of the first respondent and the vengeance that he nurtures against the first petitioner, in particular, is explicit in the from the Common Order of the Madras High Court in W.P. No. 28352/2017 and W.P. No.3241/2018 between the parties and others. Even while deciding the matter in favour of the first respondent herein regarding the allegation of creation of a fake Transfer Crl.MC 1666/2018 17 ## Certificate by the first petitioner herein, the Court held thus : “18. At the same time, this Court records its displeasure in the act of the petitioner, as he is ruining the life of his children, by not allowing them to pursue their education peacefully. It is high time, the petitioner realises that it is not only the spouse who is affected in the matrimonial dispute, but the children too. If a separated parent, who takes care of the child, is mentally tormented by his/her spouse, he/she will not be able to guide the child properly, thereby, the child will become spoilt one. Family should be built up with love and affection and it is disheartening to note that the family in the case on hand, is built up with endless litigations, which is eventually destroying the peace and prosperity of the children. This Court expects the petitioner. To discharge his obligation towards his children, at least with regard to payment of fees towards education, which can be paid by demand draft/pay order/ NEFT/RTGS to the educational institution, where his children are studying and the same can be informed the Crl.MC 1666/2018 18 mother of the children." 10. Coming to the facts of this case, the specific allegation is that the petitioners had produced copy of the first respondent's passport and had subscribed his signature to obtain a birth certificate for their second born child. From the objection raised by the first respondent before the Registrar of Births and Deaths, Municipality of Palakkad, it is clear that he did not want a certificate to be issued, despite his admitting the paternity of the child. This suggests that he wanted to ruin the future of his own child. He has little qualms about destroying the future of his progeny, in order to wreak vengeance against his wife. As held by the Apex Court in Crl.MC 1666/2018 19 Indian Oil Corpn. v. NEPC India Ltd. (supra), a complaint may also be quashed where it is a clear abuse of the process of the Court, as and when the criminal proceeding is found to have been initiated with mala fides / malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. In the circumstances of the case in hand, the conclusion is inescapable that invoking the jurisdiction of criminal court for allegedly having committed offences under S.417/420 IPC by the petitioners is certainly an abuse of the process of law. Despite being a person with high qualifications, the first respondent is a petty minded ruthless and vengeful person who cares little for his own children and is bent upon ruining their future. The complaint filed by the first Crl.MC 1666/2018 20 respondent against the petitioners constitutes an abuse of the process of court and is liable to be quashed. The Crl.M.C is allowed and the entire proceedings in Crime No.1881/2013 of the Town South Police Station, Palakkad, presently pending as C.C No.63/2014 on the files of the Chief Judicial Magistrate's Court, Palakkad stands quashed under Section 482 Cr.P.C. Sd/- ASHOK MENON JUDGE jg Crl.MC 1666/2018 21 ## **APPENDIX OF CRL.MC 1666/2018** ## PETITIONER ANNEXURE ANNEXURE A. TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE, PALAKKAD ANNEXURE B. TRUE COPY OF THE FINAL REPORT IN CRIME NO.1881/2013 OF PALAKKAD TOWN SOUTH POLICE STATION, ERNAKULAM, NOW PENDING AS C.C.NO.63/2014 ON THE FILE OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD - ANNEXURE C. TRUE COPY OF THE BIRTH CERTIFICATE ISSUED FROM THE PALAKKAD MUNICIPALITY RESPONDENT'S EXHIBITS ANNEXURE-A COPY OF LETTER DATED 10.5.2012 TO THE REGISTRAR OF BIRTHS AND DEATHS ANNEXURE-B ACKNOWLEDGMENT BY PALAKKAD MUNICIPALITY VIDE RECEIPT INWARD NO.23942/2012 - ANNEXURE-C APPLCIATION FORM FOR BIRTH CERTIFICATE ANNEXURE-D APPLICATION FORM FOR NAME INCLUSION AND IDENTITY PROOF SUBMITTED BY THE 1ST PETITIONER ANNEXURE-E ACKNOWLEDGMENT FOR COMPLAINT DATED 25.5.2013 BY PALAKKAD MUNICIPALITY VIDE RECEIPT INWARD NO.26593/2013 Crl.MC 1666/2018 22 ANNEXURE-F POLICE COMPLAINT DATED 25.6.2013 ANNEXURE-G ORDER PASSED BY THE HONOURABLE MADRAS HIGH COURT IN WP NO.28352/2017