## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HON'BLE MR. JUSTICE K.RAMAKRISHNAN**
## **TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934**
## **Crl.MC.No. 197 of 2009 (B)**
**------------------------------------[CRIME NO.310/2008 OF PEROORKADA POLICE STATION] .............**
## **PETITIONER/ACCUSED:**
**----------------------------------**
**MALLINATH.A.T, AGED 49 YEARS, S/O.APPUKUTTAN THAMPI, NALINA HOUSE, IPAYIVILA VEEDU, T.K.D.ROAD, MUTTADA, THIRUVANANTHAPURAM.**
**BY ADV. SRI.R.GOPAN.**
## **RESPONDENTS/COMPLAINANTS:**
**------------------------------------------------**
**1. STATE OF KERALA,REPRESENTED VIA. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**2. SUB INSPECTOR OF POLICE, PEROORKADA POLICE STATION, THIRUVANANTHAPURAM.**
## ***ADDL. R.3. IMPLEADED:**
**3. THE SENIOR MANAGER, CANARA BANK, MUTTADA.**
- ***ADDL. R.3 IMPLEADED AS PER ORDER DTD. 15/03/10 IN CRL.M.A. NO.1299/10.**
## **BY PUBLIC PROSECUTOR SRI. N. SURESH.**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**Prv.**
**CRL.M.C. NO.197/2009-B:**
## **APPENDIX**
## **PETITIONER'S ANNEXURES:**
**ANNEXURE-A: COPY OF THE NOTICE DTD. 23/07/2005 ISSUED BY THE MANAGER, CANARA BANK, MUTTADA BRANCH TO THE PETITIONER. ANNEXURE-B: COPY OF THE REPLY NOTICE SENT BY THE PETITIONER TO THE SENIOR MANAGER, CANARA BANK, MUTTADA BRANCH DTD. 11/08/2008. ANNEXURE-C: COPY OF THE FIR IN CRIME NO.310/2008 OF PEROORKADA POLICE STATION DTD.01/09/2008. ANNEXURE-D: COPY OF THE ORDER IN B.A. NO.6108/2008 DTD. 07/10/2008 PASSED BY THIS HON'BLE COURT.**
## **RESPONDENTS ANNEXURES: NIL.**
**//TRUE COPY//**
**P.A. TO JUDGE**
**Prv.**
## **K. RAMAKRISHNAN, J.**
---------------------------------------Criminal M.C. No.197 of 2009
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Dated this the 5[th] day of February, 2013
## ORDER
This is an application filed by the accused in Crime No.310/2008 of Peroorkada Police Station, to quash the case registered against him under Section 482 of Criminal Procedure Code. It is alleged in the petition that, even if, the entire allegations in the complaint are admitted to be true, there is no element of cheating and ingredient of cheating has not been made out, and as such, the allegations will only go to show that there is only a breach of condition, in the contract and that will amount to civil liability alone, and no criminal offence has been committed.
2. Learned counsel for the petitioner submitted in support of his case in the petition and also relied on the decision reported in **[Vir Prakash Sharma v. Anil Kumar Agarwal and another 2007 (7) Supreme Court Cases 373]** . On the other hand, learned Public Prosecutor argued that, the investigation is in the primitive stage and according to the investigating agency, it is necessary to investigate into the matter to find out as to whether, apart from the present petitioner, any other person involved in the case or not.
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3. It is seen from the records that the above case was registered on the basis of a complaint given by the Senior Manager of Canara Bank, Muttada Branch, against the petitioner alleging that the accused started a Savings Bank account, on 11.07.2008, in his name in the bank and thereafter on 19.07.2008, he presented the cheque with No.430206 dated 16.07.2008, drawn on ICICI Bank Ltd., issued by one 'Cine Offset' for an amount of ` 3,00,000/-, and the cheque was presented in the bank and it was sent for collection. On 22.07.2008 morning, the accused came to the bank and withdrew the amount using a withdrawal slip, and later on the same date, the cheque was dishonored for the reason, 'Account Closed', by the drawee bank and though, immediately this fact was informed to the accused, he did not pay the amount. According to the complainant, this was done with an intention to cheat the bank and thereby, he had committed the offence punishable under Section 420 of Indian Penal Code. Section 415 of Indian Penal Code defines cheating as follows:
“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
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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”.
In the decision relied on by the learned counsel for the petitioner, namely, **[Vir Prakash Sharma v. Anil Kumar Agarwal and another 2007 (7) Supreme Court Cases 373]** , it has been held that “whatever the allegations contained in the complaint petition, even if given a face value and taken to be correct in its entirety does not disclose an offence, the complaint can be quashed. Merely because the accused issued cheques, which got dishonoured, the same by itself, could not mean that he cheated the complainant. If the allegations amount to only a breach of contract, then, it is only a pure civil dispute. To hold the person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently, such a culpable intention right at the beginning, that is when he made the promise cannot be presumed”. That was a case where a cheque was issued for
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value of the goods purchased and subsequently the amount was not paid. Under such circumstances, the Hon’ble Supreme Court came to the conclusion that, even if, the allegations are true, no ingredients of the offence of cheating has been made out and it is a pure civil dispute and quashed the proceedings.
4. In this case, it is seen from the allegations in the complaint that the account itself was opened just five days prior to the getting of the cheque and the cheque was presented and on 22.07.2008, he went to the bank and withdrew the amount using a withdrawal slip, even before the cheque was collected from the collecting/drawee bank, and when the fact of dishonour was informed, he did not even go to the bank to remit the amount. So all these things prima facie shows that there was some fraudulent intention on the part of the complainant in withdrawing the amount, and those aspects have to be investigated by the investigating agency, to find out the real intention on the part of the accused and to find out whether any other persons involved in the commission of the crime, and also to consider whether there was any part played by the officials of the Bank in encashing the amount by the accused as well. When the cheque was issued and the circumstances under which it
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was issued and whether it was issued by the drawer actually on that date etc., are also matter to be probed into to find out the real intention of the accused in presenting and withdrawing the amount. All those things cannot be now considered without proper evidence.
5. Learned counsel for the petitioner submitted that while granting Anticipatory Bail by this court, in Bail Application No.6108/2008, it has been observed that allegations of the complainant does not show commission of any offence and that was taken as a ground for granting anticipatory bail, and as such, that will have to be looked into by this court, while considering the prayer for quashing the complaint. I am afraid, if such an argument is accepted, any observation made while granting a bail to the accused is of binding nature, then no offence can be investigated by the investigating officer, file any final report on the basis of the evidence collected by the investigating officer, regarding the real nature of the transaction occurred in the series of transactions that led to the commission of offence. So, any observation made in the bail application can only be considered for the purpose of granting or not granting bail, and that is not having any impact while considering the
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application under Section 482 of Criminal Procedure Code, for quashing the complaint. Since the investigation is in the primitive stage and also considering the nature of things discussed above, it is not proper at this stage to quash the proceedings, as it may give room for persons, making unlawful methods to withdraw the amount from the bank, will go free without facing proper trial. So considering the circumstances, I feel that it is not a fit case to invoke the extra ordinary power under Section 482 of Code of Criminal Procedure, to quash the proceedings at this stage, as it is in the primitive stage, and collection of evidence is required, even to consider the intention of the petitioner in doing all this things, and also to consider whether he had intention to cheat the bank by presenting a cheque knowing that, it was issued from a closed account and all these matters to be investigated and found out. It is made clear that this will not a bar for the accused/petitioner to take all the contentions raised by him before this court in the trial court at the appropriate stage. The accused is also given liberty to apply for discharge in the lower court at the appropriate stage, and if such an application is filed, the lower court is directed to consider the same and dispose of the same in accordance with
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law, untrammeled by the observations, if any made in this order. With the above observation, the petition is dismissed.
_Sd/-_ **K. RAMAKRISHNAN,** (Judge)
_// True Copy//_
_P.A. To Judge_
_ss_
