Latheesh Babu P.T. and Others v. State of Kerala

``` CRL.MC NO. 2541 OF 2019 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944 ``` # **`CRL.MC NO. 2541 OF 2019`** ``` CRIME NO.38/2019 OF THONDARNADU POLICE STATION, WYANAD ``` ## **`PETITIONERS/ACCUSED:`** ``` 1LATHEESH BABU P.T., AGED 50 YEARS S/O.KUNHIRAMAN NAIR, MRIDHU GAYATHRI, KADACHIRA P.O., KADAMPURA AMSOM, ATOOR DESOM, KANNUR (DIST.). 2MRIDHULA, AGED 50 YEARS W/O.LATHEESH BABU P.T., MRIDHU GAYATHRI, KADACHIRA P.O., KADAMPUR AMSOM, ATOOR DESOM, KANNUR (DIST.). 3SHERLY, AGED 45 YEARS D/O.KUNHIAMAN, CHERUMETTHAL HOUSE, MUZHUPPILANGAD P.O., KANNUR (DIST.). BY ADV K.DEEPA (PAYYANUR) 1STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31. 2T.K.THRESSIA, 50 YEARS, D/O.KURIAKOSE, KIZHAKKE MUTTOM HOUSE, RESIDING AT KARIVALATH, MATTILAYAM (P.O.), THONDARNADU AMSOM, WAYANAD, PIN - 670 731. BY ADVS. R2 BY SRI.A.V.JAMES R1 BY SMT.M K PUSHPALETHA ``` ## **`RESPONDENTS:`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2541 OF 2019 ``` ``` 2 ``` ## K.BABU, J . -------------------------------------- ## Crl.M.C.No.2541 of 2019 --------------------------------------- Dated this the 22nd day of February, 2023 ## O R D E R The petitioners have filed this Crl.M.C to quash Annexure I FIR in Crime No.38/2019 of Thondarnadu Police Station, Wayanad and all further proceedings pursuant to it. 2. The petitioners are accused Nos.1 to 3 respectively in the above captioned FIR. Respondent No.2 is the de facto complainant. The crime was registered based on a complaint filed by respondent No.2 before the jurisdictional Magistrate, which was forwarded for investigation under Section 156(3) of Cr.P.C. The offence alleged against the petitioners is punishable under Section 420 r/w Section 34 of IPC. 3. The gist of the allegations which form the foundation of this crime is the following: Petitioner No.2 was the owner in possession of 6 cents of land ``` CRL.MC NO. 2541 OF 2019 ``` ``` 3 ``` which she acquired by way of sale deed No.855/2016 of the Sub Registrar Office, Vellamunda executed by petitioner No.3. Petitioner No.1 is the husband of petitioner No.2. The petitioners entered into an agreement for sale in respect of this property with respondent No.2 for a consideration of Rs.5,25,000/-. On 11.11.2017, petitioner Nos.1 and 2 received a sum of Rs.2,00,000/- from respondent No.2. They agreed to execute the sale deed on 30.12.2018. Thereafter, in January 2018, respondent No.2 paid a sum of Rs.1,00,000/- to petitioner No.1 towards the part of sale consideration. On 16.4.2018, respondent No.2 paid a sum of Rs.2,00,000/- more to petitioner Nos.1 and 2. Thereby, respondent No.2 paid Rs.5,00,000/- and the balance to be paid towards the sale consideration was Rs.25,000/-. On 11.11.2017 itself, petitioner Nos.1 and 2 had delivered the possession of the property and the building therein to respondent No.2. Petitioner Nos.1 and 2, however, refused to execute the sale deed in respect of the property, as agreed. Thus they cheated the 2nd respondent. 4. Heard Smt.K.Deepa, the learned counsel for the petitioners, Sri.A.V.James, the learned counsel for the 2nd respondent and the learned ``` CRL.MC NO. 2541 OF 2019 ``` ``` 4 ``` ## Public Prosecutor. 5. The learned counsel for the petitioners contended that even if the whole averments in the complaint filed by respondent No.2, which form the foundation of the crime, are accepted on its face value, no offence under Section 420 of IPC is attracted. Per contra, the learned counsel for the 2nd respondent contended that the failure on the part of petitioner Nos.1 and 2 to execute the sale deed as agreed amounts to breach of trust and cheating. The learned Public Prosecutor submitted that the averments in the complaint revealed the offence under Section 420 of IPC. ## 6. Cheating is defined in Section 415 of IPC, which 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. The ingredients to constitute an offence under Section 420 of IPC are as follows: ## " 420. Cheating and dishonestly inducing delivery of ``` CRL.MC NO. 2541 OF 2019 ``` ``` 5 ``` 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." 8. The essential requirement of attracting an offence under Section 420 of IPC is a fraudulent or dishonest inducement. A person who dishonestly induces any person to deliver any property is liable for the offence of cheating. 9. A guilty intention is an essential ingredient of the offence of cheating. In other words, the mens rea on the part of the accused must be established to attract the offence of cheating. 10. Where the charge against the accused is under Section 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do ``` CRL.MC NO. 2541 OF 2019 ``` ``` 6 ``` so in order to induce the complainant to part with the goods then a case of cheating would be established. (Vide: Mahadeo Prasad vs State Of West Bengal (AIR (1954) SC 724)) 11 . In Hari Prasad Chamaria vs Bishun Kumar Surekha And Ors. [ 1973 (2) SCC 8230] the Apex Court held that unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under Section 420 of IPC and it may only amount to a breach of contract. In G.V. Rao vs L.H.V. Prasad & Ors (2003 SCC 693) the Apex Court reiterated that a guilty intention is an essential ingredient of the offence of cheating and therefore, to secure conviction "mens rea" on the part of the accused must be established. It was further held that in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. These principles have been reiterated by the Apex Court in Ajay Mitra v. State of M.P and others [(2003) 3 SCC 11] and in Archana Rana v. State of Uttar Pradesh and another [(2021) 3 SCC 751]. 12. The learned counsel for the 2nd respondent relied on ``` CRL.MC NO. 2541 OF 2019 ``` ``` 7 ``` Mohammed Ibrahim and others v. State of Bihar and another [(2009) 8 SCC 751] and Arun Bhandari v. State of U.P [2013(1)KLT SN 81) to contend that the dispute of a civil nature may also contain the ingredients of criminal offence and if so, will have to be tried as criminal offence, even if they also amount to civil disputes. The civil dispute could be tried as criminal offence only if the ingredients of the criminal offence are made out. 13. I have analysed the facts in the present case on the touch stone of the principles discussed above. In the present case, even according to respondent No.2, the de facto complainant in the crime, the parties entered into an agreement for sale in respect of the property involved, on 11.11.2017. On the date of the commencement of the transaction itself the petitioners had transferred the landed property and the building to respondent No.2, the de facto complainant. According to respondent No.2, this property has been in her possession since 11.11.2017. If the petitioners had any intention to induce respondent No.2, to deliver the amount involved, they would not have surrendered the possession of the same to respondent No.2. What is discernible from ``` CRL.MC NO. 2541 OF 2019 ``` ``` 8 ``` the averments in the complaint is that there is a breach of contract on the part of the petitioners. The alleged guilty intention at the commencement of the very transaction is absent. 14. On the exercise of extra ordinary power under Article 227 of the Constitution of India or the inherent power under Section 482 of Cr.P.C, the Apex Court in State of Haryana and Others v. Bhajan Lal and Others (1992 Supp. (1) 335) held thus:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an ``` CRL.MC NO. 2541 OF 2019 ``` ``` 9 ``` order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 15. The present case is fully covered by categories 1 and 3, as enumerated in State of Haryana (supra). I am of the view that, in the present facts and circumstances, the criminal proceedings consequent to the registration of the FIR in Crime No.38/2019 of Thondarnadu Police ``` CRL.MC NO. 2541 OF 2019 ``` ``` 10 ``` Station are liable to be quashed. In the result, the Crl.M.C. is allowed. The FIR in Crime No.38/2019 of Thondarnadu Police Station and all further proceedings therein stand hereby quashed. Sd/- K. BABU JUDGE ab ``` CRL.MC NO. 2541 OF 2019 ``` ``` 11 ``` ## **`APPENDIX OF CRL.MC 2541/2019`** ``` PETITIONER ANNEXURES ANNEXURE ITRUE COPY OF THE FIR OF THE CRIME NO.38/2019 OF THE THONDARNADU POLICE STATION, WAYANAD. ANNEXURE IITRUE COPY OF PETITION NO.2257/2019/W DATED 18/01/2019 FILED BY THE 1ST PETITIONER BEFORE THE SUPERINTEND OF POLICE, KALPETTA, WAYANAD. ANNEXURE IIITRUE COPY OF THE CAVEAT APPLICATION DATED 21/01/2019 U/S.148A OF THE C.P.C.FILED BY THE DE FACTO COMPLAINANT BEFORE THE LEARNED MUNSIFF COURT, MANANTHAVADY. ``` RESPONDENTS ANNEXURES: NIL