M.K. Wilson v. State of Kerala and Thomas Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936** ## **Crl.MC.No. 5540 of 2013 ()** **--------------------------CC.NO.321/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- II, MAVELIKKARA, ALAPPUZHA DISTRICT ------------------------------** ## **PETITIONER/ACCUSED :** **---------------------------------------** **M.K.WILSON, S/O. M.V.KURIAN,AGED 35 YEARS, MUTHOOT HOUSE, PULIYOOR P.O., PULIYOOR MURI, PULIYOOR VILLAGE, CHENGANNUR.** ## **BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)** ## **RESPONDENTS/COMPLAINANT & DEFACTO COMPLAINANT:** **-------------------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANNAR POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. THOMAS THOMAS,** - **S/O. GEE VARGHESE THOMAS,AGED 68 YEARS, RESIDING AT THOPPIL KIZHAKKETHIL, PARUMALA MURI, KADAPPRA VILLAGE, MANNAR-689 626.** **R1 BY PUBLIC PROSECUTOR SMT. S.HYMA** **R2 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP** **SRI.MANU SEBASTIAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31-03-2014, THE COURT ON 07-04-2014 PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 5540 of 2013 () --------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **--------------------------------------------** **ANNEX 1 : CERTIFIED COPY OF THE FINAL REPORT IN CC NO.321/2013 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, MAVELIKKARA ANNEX 2 : COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE DY.S.P. CHENGANNUR. ANNEX 3 : COPY OF THE ORDER IN CRL.MP NO.914/2013 OF THE SESSIONS COURT, ALAPPUZHA.** ## **RESPONDENT(S)' ANNEXURES: NIL** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.5540 of 2013 .................................................. Dated this the 7[th] day of April, 2014. ## **O R D E R** The accused in C.C.No.321/2013 on the file of the Judicial First Class Magistrate Court-II, Mavelikara, has filed this petition to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code). 2. It is alleged in the petition that petitioner is the sole accused in C.C.No.321/2013 pending before the Judicial First Class Magistrate Court-II, Mavelikakra. The case was originated on the basis of a written complaint filed by the second respondent before the Deputy Superintendent of Police, Chengannur, which was forwarded to the concerned police station through proper channel and a crime was registered as Crime No.741/2012 under Section 420 of the Indian Penal Code of Mannar police station. The allegation in the complaint was that the second respondent, who is the defacto complainant, was running an educational consultancy by name Jincy Nursing Net and they were arranging for students for professional courses in neighbouring States. The petitioner, who is also 2 Crl.M.C.No.5540 of 2013 conducting such similar consultancy, has business contacts with second respondent and second respondent arranged admission to the students in Bangalore through the petitioner's concern for which he was paying service charges. Contrary to the agreement, the petitioner failed to pay service charges due to the second respondent for the year 2011-12 to the tune of Rs.3,52,210/- and in spite of repeated demands, he did not pay the amount. So he had committed the offence punishable under Section 420 of the Indian Penal Code. After investigation, Annexure-1 final report was filed before the Judicial First Class Magistrate Court-II, Mavelikara and the same was taken on file as C.C.No.321/2013 under Section 420 of the Indian Penal Code by the learned Magistrate. According to the petitioner, even assuming that the entire allegations in the complaint are true and genuine, it only shows that there was some business transaction between the petitioner and the second respondent and some amounts were due from the petitioner to the second respondent and as such, no criminal offence was made out and it is only a pure civil dispute and the present complaint has been filed having civil nature before a criminal court so as to pressurize the petitioner to settle the civil dispute between the Crl.M.C.No.5540 of 2013 3 parties and it is an abuse of process of court. So no offence under Section 420 of the Indian Penal Code is made out and, as such, the complaint is not maintainable and the same is liable to be quashed. So the petitioner has filed this petition under Section 482 of the Code seeking the following relief: For these and other reasons urged at the time of hearing it is humbly prayed that this Hon'ble Court may be pleased to quash Annexure -1 Final Report in C.C.No.321/2013 pending before the Judicial First Class Magistrate Court-II, Mavelikara by allowing this Criminal Miscellaneous Case. 3. Heard the counsel for the second respondent and the learned Public Prosecutor 4. The counsel for the petitioner submitted that even assuming that the entire allegations in the complaint are admitted to be true, it is only a pure business transaction and a contract to pay service charges for arranging admission for students through their consultancy and even as per the allegations, major portion of the amount has been paid and only a small portion is due and that will only amount to settlement of accounts which is a civil dispute and not a criminal offence. He had relied on the decisions reported in **Hari Prasad** 4 Crl.M.C.No.5540 of 2013 **Chamaria v. Bishun Kumar Surekha and Others** (AIR 1974 SC 301), **The State of Kerala v. V.A. Pareed Pillai** (AIR 1973 SC 326) and **V.Y. Jose and Another v. State of Gujarat and Another** (2009 (3) SCC 78) in support of his case. 5. On the other hand, the learned counsel for the second respondent submitted that even in a case where civil remedy is available, if criminal offence is also made out, merely because civil remedy available is not a ground to quash the proceedings under Section 482 of the Code. In fact, the petitioner had dishonestly withheld the amount payable to the 2[nd] respondent and in spite of demands made, he had not paid the amount and thereby there is an element of cheating made prima facie and other things are to be proved at the time of trial as a defence raised by the petitioner for non payment of the amount. So, under such circumstances, it is not a fit case to invoke Section 482 of the Code to quash the proceedings at the initial stage itself. 6. The learned Public Prosecutor supported the stand taken by the counsel for the second respondent. 7. It is an admitted fact that the petitioner and the second respondent were having some business transaction and they 5 Crl.M.C.No.5540 of 2013 are conducting educational consultancy centres. It is also in a way admitted in the complaint itself that second respondent used to obtain admission for students in various educational institutions at Bangalore through the petitioner's concern for which certain amount was agreed to be paid as service charges at some agreed rate. The case of the complainant in the complaint was that he was sending the students for that purpose and for the year 2011-12 an amount of Rs.8,02,500/- is payable, of which Rs.6,22,000/- was paid and there is an amount of Rs.1,80,500/- is due towards service charges and an amount of Rs.1,51,710/- being the advertisement charges and a total amount of Rs.3,52,210/- is due to him during that period and this amount was not paid. 8. Further the complaint filed by the petitioner before the Deputy Superintendent of Police, Chengannur which is the basis for registering the crime against the petitioner which reads as follows: `L¢ So¤kr´ òLkj¾]R£ DaopLeV. +2 kLôLp v]h|L¡À] W¥¨V v]v]i SWLuVyOW¥¨V mLUYæPq]Rs v]v]i SWLSt^OWt]¤ AcVo]x¢ Crl.M.C.No.5540 of 2013 6 RWLaO¾V Af]¤ j]ÐOU W]ŸOÐ y¡vÿ}yV \L¡^LeV IR£ vqOoLjU. 67 vpôOç Ij]¨V qºV NkLvw|U zQhVSqLYmLi DºLpf]jL¤ hPq pLNf ja¾OÐf]SjL WPaOf¤ Ra¢x¢ Dç WLq|°t]¤ CaRkaOÐSfL ScLWVa¡ v]s¨]p]q]¨OWpLeV. Wu]´ oPÐOv¡xoLp] kOs]pP¡ SðãV mLË]jO If]¡vwU oO¾PãV IÐ v}Ÿ]¤ fLoy]¨LqjOU mLUYæPq]¤ Ic|PS¨x¢ W¦y¥Ÿ¢y] v]¤y¦ oq]p¢ ja¾OÐ BtOoLp IÐpLtORa Ic|PS¨x¤ W¦y¥Ÿ¢y] IÐ òLkjU vu]pLeV `L¢ mLUYæPq]¤ WOŸ]W¥¨V AcVo] x¢ RWLaO¾]qOÐfV. SWLSt^OoLp]ŸV Sjq]ŸOç CakLaOU IR£ y¡vÿ}yV \L¡^OU fÐ]qOÐfV v]¤y¦ Bp]qOÐO. qºV v¡xU jsæ q}f]p]¤ vµj WLe]¨LRf ISÐLaV ASÇzU CaRkŸf]R£ Aa]òLj¾]¤ ASÇz¾]¤ kq]kP¡¹ v]w~LyU A¡Õ]\ÿV Wu]´ 2011&2012 AÈ|pj v¡xU `L¢ ASÇz¾]¤¨Pa] AcVo]x¢ RWLaO¾ WOŸ]Wt]¤ j]ÐOU Ij]¨V sn]S¨º y¡vÿ}yV \L¡^]¤ nLY]WoLp]fÐ fOW¨OSwxU Ij]¨O fSqº Rs. 200500/-( qºV sƒ¾] A´PrV) qPkpOU IR£ Rxp¡ Wu]\ÿOç Rs.151710/-( sƒ¾]A¢k¾]KqLp]q¾] kqy| fOWpLp KqO Crl.M.C.No.5540 of 2013 7 Rs. 352210/- ( IuOÐPã] k¾V) qPkpOU D¥RÕRa RoL¾U oPÐO sƒ¾] A¢k¾}qLp]q¾] CqOÐPã] k¾V) qPkL Ij]¨O fqLRf v]¤y¦ IRÐ vµ]\ÿ]q]¨OWpLeV. Rs. 180500/- ( kqy| fOW WPaLRf KqO sƒ¾] I¦kf]jLp] q¾] A´PrV) qPkSp fqLjOçP IÐO WLe]\ÿV KqO SðãVRo£V ASÇzU Ij]¨O fÐ]qOÐO. KqO v]h|L¡À] SWLSt^]¤ S\¡ÐV KqO oLy¾]jOç]¤ y¡vÿ}yV \L¡^V fqOWpLeV kf]vV. Bh|R¾ qºO v¡xvOU v]¤y¦ Rfã] \ÿ]sæ. KqO v¡xoLp] WOŸ]W¥ l}yV RWLaO¾]Ÿ]sæ IÐLeV ASÇzU krpOÐfV. KqO v¡xoLp] l}y]sæLRf KqO SWLSt^OU WOŸ]WRt kb]Õ]¨OWp] sæ IÐV IsæLv¡¨OU Ar]pLU. Wu]´ qºO oLyU ks¡ oOXLÍ]qU ASÇzS¾LaV Bvw|RÕŸ]ŸOU, ASÇz¾]R£ nvj¾]¤SkLp] k]fLv] RjWºV kr´]ŸOU Soa]¨ORoË]¤ Soa]S\ÿL IÐ n}xe] y~qoLeV v] ¤y¦ ja¾OÐfV. SWLa]¨e¨]jO qPkpORa ByVf] jLŸ]sOU mLUYæPq]sOU oãO òs°t]sOoOç v]¤yeV IR£ CT fOW j]o]x°¥¨WU fqOÐf]jO KqO mOÈ]oOŸOU Dç Btsæ. ASÇz¾]R£ nvj¾]SsL mLUYæPq]SsL SkLp] NkwVjoOºL¨] vL° LjOç BSqLY|ò]f]psæL Ij]¨OçfV. yoƒ¾V hpvOºLp] A°V IR£ Crl.M.C.No.5540 of 2013 8 CT ASkƒ¨V kq]zLqoOºL¨] Ij]¨O fqLjOç fOW INfpOU SvYU vL°]¾qOoLrLWeRoÐSkƒ]¨OÐO. 9. So, it is clear from the above that he had no case in the complaint that the petitioner had any dishonest intention of cheating the defacto complainant. Further there is nothing mentioned in the complaint that even at the time when the business transaction was entered into between the petitioner and the second respondent, he had the intention to cheat. He had no case that the petitioner had not paid the amount due to the second respondent during the previous years. 10. In the decision reported in **The State of Kerala v. V.A.Pareed Pillai** (AIR 1973 SC 326), it has been held that to hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. In the decision reported in **Hari Prasad Chamaria's case** (cited supra) it has been held that even assuming prima facie all the allegations in the complaint to be true if they merely amount to a breach of contract, it could not give rise Crl.M.C.No.5540 of 2013 9 to criminal prosecution. There was nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with the money nor did the complaint indicate that the respondents had induced the appellant to pay them the amount parted with. Further in the same decision, it has been held that the fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondent for the offence of cheating. Further in the decision reported in **Y.V Jose's case** (cited supra) it has been held that in order to attract the offence under Section 420 of the Indian Penal Code, it must be proved that there was fraudulent or dishonest intention at the time of making the initial promise, offence under Section 420 is not proved. Further, mere breach of contract does not necessarily involve cheating. Further, in the same decision, it has been held that if the allegations even prima facie show some civil liability and does not amount to criminal offence and the complaint was filed Crl.M.C.No.5540 of 2013 10 to pressurize the accused to settle civil dispute in the form of criminal offence, then it will be amount to abuse of process of court and the power under Section 482 of the Code can be invoked to quash the proceedings. 11. In view of the principles laid down in the above decisions, in order to attract an offence under Section 420 of the Indian Penal Code, it must be alleged by the complainant in the complaint or First Information Statement itself as the case may be that even at the time when the accused had entered into a transaction, he had the intention to cheat the defacto complainant or the complainant as the case may be. Further, it is also clear from the above decisions that even if there was a contract entered into between the parties in connection with some transaction, and merely because there was some breach committed by the accused, subsequent breach of promise alone will not amount to cheating but it may give rise to a civil liability to be proceeded against for recovery of the amount due. 12. In this case also it will be seen from the allegations in the complaint that what was required by the second respondent is only realisation of the balance amount due from the petitioner Crl.M.C.No.5540 of 2013 11 towards service charges agreed to be paid for securing admission for students through his educational consultancy. He had no case that the amounts were not paid earlier. He had no case in the complaint that even at the time when the contract was entered into, he had dishonest and fraudulent intention to cheat the complainant. He had no case that no amount was paid as well. Even from the allegations, it is clear that major portion of the amount has been paid and only a portion of amount was due from the accused to the complainant. So under the circumstances even assuming that the entire allegations in the complaint are admitted to be true, it only prima facie raises civil liability and no criminal offence has been made out. So there is some force in the submission made by the counsel for the petitioner that in the absence of any criminal offence prima facie made out, he cannot be proceeded against and it is only an abuse of process of court and the attempt of the second respondent is to pressurize the petitioner to settle the civil dispute that criminal action has been initiated which is unsustainable in law and it will amount to abuse of process of the court and the power under Section 482 of the Code has to be invoked to quash the proceedings. 12 Crl.M.C.No.5540 of 2013 13. In view of the discussions made above, the allegations in the complaint does not make out a criminal offence prima facie so as to proceed against the petitioner for the offence under Section 420 of the Code and so further proceedings initiated on the basis of Annexure-2 complaint culminated in filing of Annexure-1 final report and pending before the Judicial First Class Magistrate Court-II, Mavelikara as C.C.No.321/2013 is liable to be quashed. 14. In the result, the petition is allowed and further proceedings in C.C.No.321/2013 pending before the Judicial First Class Magistrate Court-II, Mavelikakra as against the petitioner is quashed. Officer is directed to communicate this order to the concerned court for necessary further action immediately. ## **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.5540 of 2013 13