LISAPTITUS @ LISSY and TITUSP.CHACKO v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV MONDAY,THE5[TH]DAYOFJUNE2023/15THJYAISHTA,1945 CRL.MCNO.3757OF2015 ``` ``` AGAINSTCCNO.842/2014ONTHEFILESOFTHEJUDICIAL MAGISTRATEOFFIRSTCLASS,KOTHAMANGALAM ``` ## **`PETITIONERS/ACCUSED :`** ``` 1LISAPTITUS@LISSY AGED48YEARS W/O.TITUSP.CHACKO,PUTHUPADIYILHOUSE, WARDNO.IX,NELLIMATTOMVIA, THALAKODEP.O.,ERNAKULAMDISTRICT. 2TITUSP.CHACKO AGED60YEARS S/O.P.M.CHACKO,PUTHUPADIYILHOUSE, WARDNO.IX,NELLIMATTOMVIA,THALAKODEP.O., ERNAKULAMDISTRICT. ``` ``` BYADVSRI.ALIASM.CHERIAN ``` ## **`RESPONDENT/COMPLAINANT :`** ``` 1STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM-682031. ``` ``` **Addl.R2IMPLEADED 2 EBIEBRAHAM AGED38YEARS S/OEBRAHAM,VETTUKUZHIYILHOUSE, POTHANIKKADUPOLICESTATION, POTHANIKKADUPO,ERNAKULAM-686671 ``` ``` **ISIMPLEADEDASADDITIONALR2ASPERORDERDATED 19.01.16INCRL.MANO.477/2016. ``` ``` CRL.MCNO.3757OF2015 ``` ``` 2 ``` ``` **PRESENTADDRESSOFADDITIONALR2 ``` ``` MR.EBIEBRAHAM,POSTBOXNO.970,MARISSIONAVE, MISSISSAUGU,ONLIAD7,CANADA. ``` ``` **ISRECORDEDASPERORDERDATED28.03.2019INMEMOIN CRL.M.A.NO.477/2016. ``` ``` BYADVS. SMT.TESSYJOSE SRI.JOHNYCHERIAN ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 05.06.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` ``` CRL.MCNO.3757OF2015 ``` ``` 3 ``` ## **ORDER** The 1st petitioner is the wife of the 2nd petitioner. They are the accused in CC No.842/2014 on the files of the Judicial First Class Magistrate Court, Kothamangalam. They are accused of having committed the offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code (IPC). 2. Annexure A7 is the complaint filed by the additional 2nd respondent, based on which the law was set in motion. In his complaint, he states that the 1st accused was the owner in absolute possession and title of a property with an extent of 5.5 cents. After much negotiation, the parties agreed to sell the property to the 2nd respondent herein for a total consideration of ₹10 lakhs. In pursuance to this, on 31 October 2012, an agreement for sale was executed between the 2nd respondent and the 1st petitioner in the presence of the 2nd petitioner. A sum of ₹5 lakhs was paid as an advance. It was also agreed that the balance amount of ₹5 lakhs would be paid on or before 30 April 2013. It was undertaken that on or before the said date, the title deed and other revenue records in respect of the property covered under the agreement would be handed over to the 2nd ``` CRL.MCNO.3757OF2015 ``` ``` 4 ``` respondent. 3. In spite of the understanding entered into as aforesaid, the petitioners did not come forward to execute the sale deed. The de facto complainant contends that the matter was delayed by stating one reason or the other. While so, the 2nd respondent came to know that the aforesaid property, in respect of which an agreement was entered into, was sold by the petitioners on 4 January 2013 to one Shiji, as per document No.67/2013 of the Kothamangalam Sub Registrar’s Office. The de facto complainant asserts that the sale deed was executed during the period of validity of the agreement dated 31 October 2012 entered into between the 2nd respondent and the 1st petitioner. Based on the complaint lodged as aforesaid, Crime No.738 of 2013 was registered, and after investigation, final report was laid before the learned Magistrate. 4. The learned counsel appearing for the petitioners submitted that the allegations in the Final report, even if accepted as such, will not make out any offence against the petitioners. It is urged that the mere fact that the petitioners did not honor the terms of the agreement entered into between the 1st petitioner and the de facto complainant will not lead to a conclusion that the petitioners had any intention to deceive at the inception. ``` CRL.MCNO.3757OF2015 ``` ``` 5 ``` The learned counsel would submit that the de facto complainant is a money lender who had advanced certain amounts of money to the 2nd petitioner. When the police, at the instance of the de facto complainant started harassing the petitioners, they approached this Court and filed a writ petition seeking directions which was disposed of by this Court by Annexure-A5 judgment. It is submitted that instead of pursuing the civil remedies, the de facto complainant has approached the police and got the crime registered solely for the purpose of harassing the petitioners. 5. In response, it is submitted by the learned counsel appearing for the party respondent, that a given set of facts may make out a civil wrong as well as a criminal offence and only because a civil remedy may be available to the complainant is no reason to quash the proceedings. It is submitted that the records would reveal that during the validity period of the agreement, the petitioners assigned the property to strangers and this fact would clearly show that the petitioners herein had an intention to deceive at the inception. 6. I have considered the submissions advanced and have perused the entire records. 7. Annexure A8 is the agreement entered into between the 1st ``` CRL.MCNO.3757OF2015 ``` ``` 6 ``` petitioner and the 2nd respondent. As per the terms of the agreement entered on 31.10.2012, the 1st petitioner undertook to assign the property comprised in Survey No.473/11 and having an extent of 5.50 cents to the 2nd respondent. There is no case for the 2nd respondent that the 1st petitioner was not the owner of the property or that she had no assignable title. I find from the agreement that an undertaking was given that on or before 30.4.2013, the 1st petitioner shall convince the 2nd respondent as regard the title and assignable interest and thereafter execute and register the sale deed after receiving the balance consideration. It is mentioned in the sale deed that if either of the parties failed to act in terms of the agreement, he or she shall be liable for the consequences and right of the other party to approach the jurisdictional forum for realizing the damages and compensation from the movable and immovable properties of the offending party was reserved. 8. The question is whether in the above fact scenario, the offence under Sections 406 and 420 of the IPC would be made out. 5. Section 415 of the IPC defines “cheating” which reads as under: “ **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, ``` CRL.MCNO.3757OF2015 ``` ``` 7 ``` 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”.” 6. The essential ingredients of the offence of cheating are: 1. Deception of any person 2. (a) Fraudulently or dishonestly inducing that person— - (i) to deliver any property to any person; or - (ii) to consent that any person shall retain any property; or - (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no 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. 9. To attract the offence of cheating, the essential ingredient is a fraudulent or dishonest inducement. Section 420 IPC defines “cheating and dishonestly inducing delivery of property” which reads as under: “ **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 ``` CRL.MCNO.3757OF2015 ``` ``` 8 ``` seven years, and shall also be liable to fine.” 10. To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved: - (i) The representation made by the person was false. - (ii) The accused had prior knowledge that the representation he made was false. - (iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made. - (iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed. 11. It is by now a settled proposition of law that in order to attract the offence of cheating, there has to be fraudulent or dishonest intention at the very inception of the transaction i.e. at the time when the promise or representation was made. 12. In **Hira Lal Hari Lal Bhagwati v. Central Bureau of Investigation** [AIR 2003 SC 2545] the Hon'ble Supreme Court had occasion to hold that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent intention at ``` CRL.MCNO.3757OF2015 ``` ``` 9 ``` the time of making promise or representation. It was further held that from his making failure, to keep up promise subsequently such a culpable intention right at the beginning, i.e., at the time when the promise was made cannot be presumed. 13. In **Anil Mahajan v. Bhor Industries,** 2005 (10) SCC 228, it was observed by the Apex Court that the substance of the complaint is to be seen and the mere use of the expression 'cheating' in the complaint is of no consequence. Therefore, unless the complainant is able to show that the petitioner had a dishonest or fraudulent intention at the time he entered into a sale agreement with him, cheating would not be made out. ## 14. In **Vesa Holdings Pvt. Ltd. v. State of Kerala** [2015 (8) SCC 29], it was held by the Apex Court as under: It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under S.420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising ``` CRL.MCNO.3757OF2015 ``` ``` 10 ``` this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of Court and the High Court committed an error in refusing to exercise the power under S.482 Criminal Procedure Code to quash the proceedings. ## 15. Insofar as Section 405 of the IPC is concerned, the ingredients ## are ; a) There should be an entrustment by one person to another of the property or with any dominion over property. b) Such entrustment must be in trust c) There must have been a misappropriation or conversion to his own use by the person, who received the property in trust. d) Such conversion or detention of the property must be against or in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract made touching the discharge of such trust. (See **K.C.Thomas v. A. Varghese** [1973 KLT 476]). 16. In order to attract the offence under the section, there must be dishonest misappropriation by the person in whom confidence is placed as to the custody or management of the property in respect of which breach of trust is charged. In the case on hand, the only allegation is that in violation ``` CRL.MCNO.3757OF2015 ``` ``` 11 ``` to the terms of the agreement, the property was assigned by the 1st petitioner. The refusal to execute the sale deed after receiving part of the sale consideration on the strength of an agreement will not by itself attract the offence under Section 406 of the IPC. 17. In **State of Haryana v. Bhajan Lal** , AIR 1992 SC 604 : (1992 CriLJ 527), the Hon'ble Supreme Court held that where the allegations made in the FIR or the complaint even if they are taken at their face value and accepted in their entirety do not, prima facie, constitute any offense or make out any case against the accused, the court would be justified in quashing the criminal proceedings in exercise of powers u/s. 482 of Code of Criminal Procedure. ## 18. In **V.Y. Jose and Another v. State of Gujarat and Another** (AIR 2009 SC (Supp) 59) (supra) the Hon'ble Supreme Court, inter alia, observed as under : - "S.482 of the Code of Criminal Procedure, saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. It is one thing to say that a case has been made out for trial and as such the criminal proceedings should not be quashed but it is ``` CRL.MCNO.3757OF2015 ``` ``` 12 ``` another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all." 19. In Inder **Mohan Goswami and Another v. State of Uttaranchal and Others** 2007 (12) SCC 1 : (AIR 2008 SC 251), the Hon'ble Supreme Court, while quashing all the proceedings emanating from the FIR, inter alia, observed as under : "The Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. " In Indian Oil Corporation v. N.E.P.C. India Ltd. 2006 (6) SCC 736 : (AIR 2006 SC 2780), the Hon'ble Supreme Court cautioned against a growing tendency in business circles to convert purely civil disputes into criminal cases. The Hon'ble Court observed that : - "Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged." 20. The present case appears to be an attempt to solve a dispute which is purely of civil nature, by putting pressure on the petitioners by initiating criminal proceedings against them. The allegations made in the ``` CRL.MCNO.3757OF2015 ``` ``` 13 ``` charge sheet, even if taken as correct and on their face value, do not constitute any criminal offence, and therefore, the guidelines laid down by the Supreme Court in the case of **Bhajan Lal** , AIR 1992 SC 604 : 1992 CriLJ 527 (supra) squarely apply to the present case. 21. Having considered the entire facts and in the light of the above precedents, I am of the view that this is one of those rare and exceptional cases, wherein this Court will be justified in terminating the criminal proceedings by invoking the powers under Section 482 of the Code. - Resultantly, this petition is allowed. Annexure A9 final report in Crime No.738/2013 of the Pothanikkadu Police station and all further proceedings pursuant thereto against the petitioners in C.C. No.842 of 2014 on the file of the Judicial Magistrate of the First Class, Kothamangalam are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS ``` CRL.MCNO.3757OF2015 ``` ``` 14 ``` ## **`APPENDIX OF CRL.MC 3757/2015`** ``` PETITIONERANNEXURES: ``` ``` ANNEXUREA1COPYOFCOMPLAINTDTD.5.7.2013. ``` ``` ANNEXUREA2COPYOFCOMPLAINTDTD.19.7.2013. ANNEXUREA3COPYOFAPPLICATIONDTD.15.11.2013. ANNEXUREA4COPYOFLETTERNO.2513/RTI/12FDTD.9.12.2013 ALONGWITHACOPYOFTHEREPORT NO.1364/SO/PTN/13FDTD.14.8.2013. ANNEXUREA5COPYOFJUDGMENTDTD.17.12.2013INWPC NO.26112OF2013. ANNEXUREA6COPYOFFIRNO.738OF13OFPOTHANIKKADU POLICESTATION. ``` ``` ANNEXUREA7COPYOFCOMPLAINTDTD.12.9.2013. ``` ``` ANNEXUREA8COPYOFAGREEMENTFORSALEDTD.31.10.2012. ``` ``` ANNEXUREA9CERTIFIEDCOPYOFFINALREPORTDTD.14.1.2014 INCCNO.842/2014. ```