Lekhammol C.K v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** ## **Crl.MC.No. 6261 of 2014** **CC 1028/2014 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES),ERNAKULAM** **CRIME NO.1184/2013 OF Ernakulam North Police Station, Ernakulam** ## **PETITIONER/ACCUSED** **LEKHAMOL C.K AGED 35 YEARS D/O.KRISHNAN,CHELAPLACKAL HOUSE,MOOLAKAD P.O,THODUPUZHA NOW RESIDING AT VRINDAVANAM COMPLEX,NEAR DISTRICT JAIL,PADUKKADU KARA,VIYYUR VILLAGE,THRISSUR DISTRICT 680 010** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, ERNAKULAM TOWN NORTH POLICE STATION,ERNAKULAM DISTRICT,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 682 031** **2 DR.D.S DILEEP KUMAR, AGED 42 YEARS, S/O.LATE DIVAKARAN,RESIDING AT FLAT NO III A,1/4 NGO QUARTERS,KAKKANAD P.O,KOCHI-31** **BY ADVS. SRI.MANSOOR.B.H. SRI.S.U.NAZAR FOR R2 PUBLIC PROSECUTOR M.N.MAYA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON 06.06.2019 PASSED THE FOLLOWING:** Crl.M.C.No.6261/2014 2 **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.6261 of 2014 -------------------------------------------Dated this the 6[th] day of June, 2019 ## **O R D E R** The petitioner is the sole accused in the case C.C.No.1028/2014 pending on the file of the Court of the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam. The allegation against her is that she has committed the offences punishable under Sections 406 and 500 of the Indian Penal Code (for short 'I.P.C'). This petition is filed by her to quash the proceedings against her in the aforesaid case 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 case against the petitioner was registered on the basis of a written complaint given by the second respondent, who is none other than her husband, before the Sub Inspector of Police, North Police Station, Ernakulam. The offences alleged against the petitioner by the second Crl.M.C.No.6261/2014 3 respondent in the aforesaid complaint were under Sections 417 and 419 I.P.C. Crime No.1184/2013 of Ernakulam Town North Police Station was registered against the petitioner on the basis of the aforesaid complaint for the offences punishable under Sections 406, 419, 427 and 465 I.P.C. 3. During the investigation of the case, the investigating officer filed a report before the Magistrate's Court concerned that the investigation revealed that the petitioner did not commit the offences punishable under Sections 419, 427 and 465 I.P.C but she committed the offences punishable under Sections 406 and 500 I.P.C. After completing the investigation of the case, the police filed Annexure A5 final report (charge sheet) against the petitioner for the offences punishable under Sections 406 and 500 I.P.C. Learned Magistrate took cognizance of the aforesaid offences and numbered the case as C.C.No.1028/2014 and ordered to issue summons to the petitioner. On various grounds, the petitioner seeks to quash all further proceedings against her in the case. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel Crl.M.C.No.6261/2014 4 for the second respondent. 5. The material averments in the written complaint given to the police by the second respondent are as follows: The petitioner and the second respondent got married on 12.04.2012 in a temple at Ernakulam. The petitioner had wilfully and fraudulently concealed material facts regarding her identity from the second respondent and made false representations. The petitioner was actually working as a lower division clerk in the Public Works Department. But, she made the second respondent to believe that she was working as a Junior Superintendent. In the application given to the office of the temple for conducting the marriage, the petitioner showed the name of one Rajani as her mother. She also gave a false address in the aforesaid application. In the absence of the second respondent, the petitioner left the house taking away the valuables presented to her by him and also an amount of Rs.30,000/-. The petitioner had wilfully suppressed her social, economical and cultural status and induced the second respondent to contract a marriage with her. She has committed the offences punishable under Sections 417 and 419 I.P.C. Crl.M.C.No.6261/2014 5 6. The allegation against the petitioner in the final report filed by the police is that she made the second respondent to believe that she was employed as a Junior Superintendent in the Public Works Department and that she married him by cheating him and also that she defamed him. 7. The offences alleged against the petitioner in the final report filed by the police are under Sections 406 and 500 I.P.C. Learned Magistrate has taken cognizance of the aforesaid offences on the basis of Annexure A5 final report. 8. Section 405 I.P.C defines the offence of criminal breach of trust. The punishment for that offence is provided under Section 406 I.P.C. 9. Section 405 of the Indian Penal Code reads as follows: _"405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be_ Crl.M.C.No.6261/2014 6 _discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."_ _10_ . A careful reading of Section 405 I.P.C shows that the ingredients of the offence of criminal breach of trust are the following: (i) a person should have been entrusted with property, or entrusted with dominion over property; (ii) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; and (iii) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. 11. There is an averment in the complaint given by the second respondent to the police that, in his absence, the petitioner took all valuables presented by him to her and all her belongings and also an amount of Rs.30,000/- belonging to him and she left the house. This is the only averment in Crl.M.C.No.6261/2014 7 the aforesaid complaint with regard to any use by the petitioner of any property owned by the second respondent. Presumably, it is on the basis of this allegation that the investigating officer reached a conclusion that the petitioner has committed an offence punishable under Section 406 I.P.C. However, in the charge sheet filed against the petitioner, there is no allegation that she had misappropriated or used or disposed of any property entrusted with her by the second respondent. 12. In order to constitute an offence of criminal breach of trust, it is essential that there was entrustment of some property or dominion over property with the accused. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit (See **Central Bureau of Investigation v. Duncans Agro Industries Limited: AIR 1996 SC 2452** ). A trust contemplated by Section 405 I.P.C would arise only when there is an entrustment of property or dominion over 8 property. True, Section 405 IPC does not contemplate the creation of a trust with all the technicalities of the law of trust. Entrustment of property as envisaged in Section 405 I.P.C need not be in any particular manner. The entrustment may arise in "any manner'' whatsoever. The words 'in any manner' in the context are significant. The section does not provide that the entrustment of the property with the accused shall be made by some person (See **Som Nath Puri v. State of Rajasthan : AIR 1972 SC 1490** ). But, in order to establish "entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment (See ## **Velji Raghavji Patel v. State of Maharashtra : AIR 1965** **SC 1433** ). The term "entrusted" in Section 405 I.P.C governs not only the word "with the property" immediately following it but also the words "or with any dominion over the property" occurring thereafter (See **State of Gujarat v. Jaswantlal Nathalal : AIR 1968 SC 700)** . 13. There is no allegation against the petitioner that she misappropriated or used or disposed of any property Crl.M.C.No.6261/2014 9 owned by the second respondent and which was entrusted with her in any manner. The second respondent has no case in the complaint given by him to the police that the petitioner had committed the offence of criminal breach of trust. In the absence of any allegation against the petitioner to the above effect, the offence punishable under Section 406 I.P.C is not made out against her. 14. The other offence alleged against the petitioner is under section 499 I.P.C. The punishment for that offence is provided under Section 500 I.P.C. 15. Section 499 I.P.C provides that whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person. 16. The second respondent has not raised any allegation against the petitioner that she made or published any imputation concerning him in any manner. The final report filed by the police or the complaint given by the second respondent to the police does not contain any such Crl.M.C.No.6261/2014 10 allegation against the petitioner. In such circumstances, the offence punishable under Section 500 I.P.C is also not made out against the petitioner. 17. Section 199(1) of the Code provides that no Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. The provision contained under Section 199(1) of the Code is mandatory. But, Section 155(4) of the Code provides that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are noncognizable. In a case where the police has conducted investigation into a cognizable offence as well as an offence punishable under Section 500 I.P.C and filed final report implicating the accused for both offences, whether the Court has got power to take cognizance of the offence punishable under Section 500 I.P.C on such report, is a larger question which arises on the facts of the present case, especially in view of the decisions of the Hon'ble Supreme Court in **State** Crl.M.C.No.6261/2014 11 ## **of Orissa v. Sharat Chandra Sahu : AIR 1997 SC 1** and **Ushaben v. Kishorbhai Chunilal Talpada: (2012) 6 SCC** **353** . But, in view of my finding that the allegations made against the petitioner do not attract or make out the ingredients of the offences punishable under Sections 406 and 500 I.P.C, the aforesaid larger question need not be decided in this case. 18. In the aforesaid circumstances, continuation of the proceedings against the petitioner would be an abuse of the process of court and the proceedings against her are liable to be quashed. 19. Consequently, the petition is allowed. All proceedings against the petitioner in the case C.C.No.1028/2014 pending on the file of the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, which are based on Annexure A5 final report, are hereby quashed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/03/06/2019 Crl.M.C.No.6261/2014 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE P1 ANNEXURE A1 THE TRUE COPY OF THE PETITION IN M.C NO 28/2013 DATED 9-92013 ON THE LEARNED ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S(ECONMIC OFFENCES) COURT,ERNAKULAM** ## **ANNEXURE P2** **ANNEXURE A2 THE TRUE COPY OF THE PETITION IN CRL M.P NO 403/2014 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT1,ALUVA** **ANNEXURE P3 ANNEXURE A3 THE TRUE COPY OF THE PETITION IN O.P NO 1549/2013 ON THE FILES OF THE LEARNED FAMILY COURT,ERNAKULAM** **ANNEXURE P4 ANNEXURE A4 THE TRUE CERTIFIED COPY OF THE FIR IN CRIME NO 1184/2013 OF ERNAKULAM TOWN NORTH POLICE STATION** ## **ANNEXURE P5** **ANNEXURE A5 THE TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO 1184/2013 OF ERNAKULAM TOWN NORTH POLICE STATION** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE