M. Sanjeevan v. State of Kerala and M. Praveena

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938** ## **Crl.MC.No. 5860 of 2016 ()** **--------------------------CC.NO. 1576/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, KANNUR CRIME NO. 266/2013 OF KANNUR TOWN POLICE STATION, KANNUR DISTRICT** **---------------------------** ## **PETITIONER/ACCUSED:** **-----------------------------------** **M.SANJEEVAN,AGED 45 YEARS, S/O.ACHUTHAN, MOOLIYIL HOUSE, P.O.KOTTALI, KANNUR-5.** **BY ADVS.SRI.P.U.SHAILAJAN SRI.M.SURESH KUMAR SMT.K.B.REKHA SMT.D.N.NISHANI** ## **RESPONDENTS/DE-FACTO COMPLAINANT & STATE:** **----------------------------------------------------------------------------** **1. M. PRAVEENA, D/O.RAGHAVAN, RESIDING AT SANTHALAYAM, ANCHUKUNNU, MANANTHAVADY, WAYANAD-670 645, LD TYPIST, O/O. SSB RAM DAS NAGAR, P.O.KSARAGODE, KASARAGODE DISTRICT-671 171.** ## **2. STATE OF KERALA,** **THROUGH STATION HOUSE OFFICER, KANNUR TOWN POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 5860 of 2016 () --------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: --------------------------------------------** **ANNEXURE I COPY OF THE CHARGE SHEET ISSUED TO THE PETITIONER FROM THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANNUR IN C.C.NO.1576/2013.** **RESPONDENT(S)' ANNEXURES: NIL ---------------------------------------------/TRUE COPY/ P.A.TO JUDGE** **sts** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - ## Crl.M.C. No. 5860 of 2016 - - - - - - - - - - - - - - - - Dated 12[th] January, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioner faces prosecution for having committed offence punishable under section 419 of the Indian Penal Code. He has invoked the powers of this Court under section 482 of the Code of Criminal Procedure (for short “the Code”) to quash the proceedings. - 2.The 1[st] respondent, a divorcee, was working as a typist in the Police Department. She placed an advertisement in the Mathrubhumi daily inviting marriage proposals. The petitioner responded to the advertisement by calling her over the phone. Thereafter the petitioner met the de facto complainant once at Kannur. They decided to go forward with the proposal. The petitioner is alleged to have gone to the official quarters of the de facto complainant at Kasargod and had a conversation with the mother of the complainant as well. Thereafter the petitioner was asked Crl.M.C. No.5860 of 2016 -2- to come to Wayanad to interact with her family members. However, nothing was heard from the petitioner thereafter. A detailed inquiry was conducted by the de facto complainant which revealed that the petitioner was married and was the father of two children. She asserts that except for having a discussion, the parties did not go forward with the proposal. Stating these allegations a complaint was submitted before the Police based on which the crime was registered and final report was laid after investigation. - 3.Heard the learned counsel appearing for the petitioner and the learned public prosecutor. Though notice was served on the 1[st] respondent, she has not cared to appear and contest the matter. - 4.The learned counsel appearing for the petitioner drew the attention of this Court to the final report and it was submitted that the prosecution had no case that the petitioner had falsely impersonated as someone else. Crl.M.C. No.5860 of 2016 -3- According to the learned Counsel, in order to attract the offence the prosecution will also have to establish not only the element of cheating, but also cheating effected in the manner described in Section 416 of the IPC. It is further contended that except for calling the de facto complainant over phone and inquiring about her advertisement, the petitioner had no occasion to meet her. It is pointed out the prosecution is resting content with the statement of the de facto complainant and the mother and no other person has been cited to prove that the petitioner had interacted with her. Finally, it is submitted that the de facto complainant had no case that she was entrapped in pursuance to any representation made by the petitioner and hence according to the learned Counsel, the continuance of the prosecution is an abuse of process. The learned Counsel would also refer to a decision of this Court in **Rarichan and Others v. State of Kerala** (2005 KHC 2078) to substantiate his contentions. Crl.M.C. No.5860 of 2016 -4- 5.Per Contra, the learned Public Prosecutor submitted that the act committed by the petitioner is one which would cause or was likely to cause damage or harm to the 1[st] respondent and therefore it cannot be said that the ingredients of the offence are lacking. It is submitted that the petitioner can always approach the trial court and seek discharge and sought for dismissal of this petition. 6.The petitioner is alleged to have committed the offence of cheating by personation. Section 416 of the IPC defines cheating by personation. As per the section a person is said to cheat by personation if he cheats by pretending to be some other person, or by knowingly substituting one person for another, representing that he or any other person is a person other than he or such other person really is. The explanation to the section provides that the offence is committed whether the individual personated is a real or imaginary person. 7.In the instant case, the prosecution has no case that the Crl.M.C. No.5860 of 2016 -5- petitioner had impersonated as someone else. In fact the complainant specifically names the petitioner as he actually is. However, it appears that the allegation is that the petitioner had dishonestly concealed facts relating to him, to the extent that he had stated to the de facto complainant that he was unmarried and induced the de facto complainant to marry him. It cannot be forgotten that except for having a conversation over telephone and the alleged meeting on 2 occasions, there is no case for the de facto complainant that the petitioner had gone beyond the stage of preparation. When the de facto complainant asked the petitioner to come to Wayanad to talk to her family members, the petitioner is alleged to have dropped everything and went incognito. It is thereafter that the de facto complainant had inquired and came to understand that he was married and was the father of 2 children. 8.To constitute the offence of cheating under section 420 of Crl.M.C. No.5860 of 2016 -6- the IPC, there has to be materials to firstly establish that there has been a practice of deception by the felon. Then on account of the deception there must be fraudulent or dishonest inducement so as to make the person deceived to deliver any property or to do something, or omit to do something et cetera. Lastly, by reason of delivery of the property or the doing of a thing or the omission to do a thing, there must be the causing of or the likelihood of the causing of damage or harm to the person deceived in body, mind, reputation property. Thus, as a result of the dishonest inducement of a person there can be either wrongful loss to the person deceived or wrongful gain to another including the person practicing the deception. Whenever any one of these results follows on account of the deception practiced by a person, then the offence of cheating would be complete. - 9.The offence of cheating by personation is a special form of cheating and to establish the offence it must be shown Crl.M.C. No.5860 of 2016 -7- that a person was cheated and that the cheating was effected in the manner specified in section 416 of the IPC. The person who cheats may falsely represent himself to be another or he may falsely represent someone else. Such false personation must be intended to hoodwink another so as to make him or her believe that the representation was true. The person cheated will also have to act upon that belief. If the person who was the object of false personation sees through the guise of the impersonator before he or she was entrapped, the offence may be an attempt but it falls short of cheating. 10.Having bestowed my anxious considerations to the allegations in the final report , I am of the considered view that the materials relied on by the prosecution will not make out an offence under section 419 of the IPC. The de facto complainant had no no case that she had acted on the said representation or had done or omitted to do any act . In that view of the matter, I am of the Crl.M.C. No.5860 of 2016 -8- considered view that the proceedings against the petitioner before the court below is an abuse of process warranting exercise of powers under Section 482 of the Code. In the result, this petition is allowed. All further proceedings against the petitioner pursuant to Annexure I final report which is now pending as C.C.No.1576 of 2013 on the file of the Judicial Magistrate of 1[st] Class-I, Kannur are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/13.1.17