O. C. Prakash v. State of Kerala and Sudheesh Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** ## **Crl.MC.No. 4280 of 2017** **CC NO.3239/2015 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, THALASSERY** **CRIME NO.1123/2014 OF THALASSERY POLICE STATION, KANNUR** ## **PETITIONER/ACCUSED NO.1:** **O. C. PRAKASH, AGED 48 YEARS, S/O.CHANDAN, ORANGI, POOLKUTTY, IRUTTY TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS/STATE/DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.1123/2014 OF THALASSERY POLICE STATION, KANNUR DISTRICT).** **2 SUDHEESH KUMAR, AGED 42 YEARS, S/O.DAMODARAN, VELLILAMTHADATHIL, PAYYAVOOR, MUTHARIKULAM, THALIPPARAMBA, KANNUR DISTRICT-670103.** **R2 BY ADV. SRI.P.V.ANOOP** **R1 BY SRI .REMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC:4280/2017 2 ## **ORDER** The petitioner herein is a practicing lawyer. He finds himself arrayed as an accused in C.C.No.3239 2015 on the file of the Judicial Magistrate of First Class, Thalassery. In the said case, he is being proceeded against for having committed offence punishable under Sections 406 and 420 of the IPC. 2. The 2[nd] respondent is the de facto complainant and the petitioner is the uncle of his wife. It appears that the relationship between the de facto complainant and his wife was quite strained. There was an attempt for mediating the disputes and he was summoned to the office of the petitioner. Certain stamp papers and other blank documents were got signed after making him believe that if he was to hand over 15.25 sovereigns of gold entrusted with him at the time of marriage and a sum of Rs.50,000/-, his wife would agree to file an application for divorce by mutual consent. He also was allegedly told that 5 sovereigns of gold belonging to him, which were in the hands of his wife, would be returned. Believing the words of the accused, he handed over the gold to him on 24.12.2012. According to the de facto complainant, the petitioner went back on his word and did not file a petition for divorce by mutual consent. He also did not return the five sovereigns of gold either. Stating the Crl.MC:4280/2017 3 above allegations, a complaint was lodged and the crime was registered as aforesaid. 3. The case was investigated by the police and on its culmination, final report was laid against the petitioner. 4. The above proceedings are sought to be quashed by this petition filed under Section 482 of the Cr.P.C. 5. The learned counsel appearing for the petitioner submitted that the criminal proceeding initiated against the petitioner, who was merely acting in his capacity as a lawyer is a clear abuse of process. He would further contend that the niece of the petitioner had filed O.P.No.512 of 2013 before the Family Court with a prayer to return the gold ornaments or its market value and also a sum of Rs.50,000/-. The Family Court, Thalasserry by Annexure-II judgment dated 29.6.2016 had allowed the petition as prayed for. He would further contend that the claim of the petitioner that he had handed over cash and gold was found to be false by the court below. He also contended that for the failure of the spouse to file a petition for mutual consent, the petitioner cannot be prosecuted in a criminal court. The petitioner had no intention to cheat or deceive the 2[nd] respondent and the allegations to that effect levelled in the complaint filed by him are Crl.MC:4280/2017 4 without basis, argues the learned counsel. The ingredients of the offence under Section 406 or 420 of the IPC will not be attracted as there are no materials to suggest that such an assurance was made or that the petitioner had any intention to deceive the 2[nd] respondent at the inception itself. 6. Per contra, the learned counsel appearing for the 2[nd] respondent submitted that the petitioner had intentionally deceived the 2[nd] respondent and he was made to believe that five sovereigns of gold would be handed over. If it was not for that assurance, the 2[nd] respondent would not have signed the documents and handed over the gold. 7. I have considered the submissions advanced and have perused the final report. Admittedly, the petitioner is an Advocate. According to the 2[nd] respondent, he was made to hand over certain gold ornaments and cash on an assurance that a petition for divorce by mutual consent would be filed. 8. The essential ingredients to attract the offence of cheating are as follows: - (i) there should be fraudulent or dishonest inducement of a person by deceiving him, - (ii) (a) the person so deceived should be induced to deliver Crl.MC:4280/2017 5 any property to any person, or to consent that any person shall retain any property; or - (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and - (iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 9. To constitute criminal breach of trust as defined under Section 405 of the IPC, there must be prima facie allegations, which should reveal that : - (i) A person was entrusted with property or with any dominion over property; - (ii) that the person so entrusted; - (a) dishonestly misappropriates or converts that property to his own use: or - (b) dishonestly uses or disposes of that property or willfully suffers any other person to do so in violation of; - (i) any direction of law proscribing the mode in which such trust is to be discharged: or - (ii) any legal contract made touching the discharge of such trust. 10. Having gone through the nature of allegations, I am of the view that the ingredients of the offence alleged are not made out in the final report laid against the petitioner. The petitioner as the lawyer of one of the parties had taken part in the mediation. Even if it is admitted that one of the spouses did not fulfill her part of the Crl.MC:4280/2017 6 promise, it cannot be deduced that the petitioner had nursed a fraudulent or dishonest intention at the inception. If all what is established is that a representation was made by the accused which was not honored subsequently, solely on that ground, criminal liability cannot be fastened on the accused. His case that he had handed over the gold and cash was negatived by the Family Court. Furthermore, the ornaments and cash, even according to the 2[nd] respondent, were the property of his wife. At any rate, the failure of the party he represents as an Advocate to keep a promise will not make the petitioner liable for the offence alleged against him. 11. In **State of Karnataka** v. **L. Muniswamy and others** [(1977) 2 SCC 699], a three-Judge Bench of the Apex Court referred to Section 482 of the Code and in paragraph 7 (pg. 703) of the Report, it was held as under: “7. …….. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a Crl.MC:4280/2017 7 lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” ## 12. In **G. Sagar Suri and another** v. **State of U.P. and others** [(2000) 2 SCC 636], the Apex Court held as under: “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” Crl.MC:4280/2017 8 13. Having considered the facts and after perusing the records, I am of the view that the continuance of the proceedings against the petitioner would be nothing, but an abuse of the process of the Court. I am of the view that this is a fit case, wherein this Court will be justified in exercising its inherent powers under Section 482 of the Code to quash the proceedings against the petitioner. In the result, this petition will stand allowed. Annexure-I final report and all proceedings pursuant thereto against the petitioner now pending as C.C. No.3239 of 2015 on the file of the Judicial Magistrate of First Class, Thalassery are quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** DSV //TRUE COPY// P.A.TO JUDGE Crl.MC:4280/2017 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I- CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1123/2014 NOW PENDING AS CC.NO.3239/15 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS. ANNEXURE IICOPY OF THE ORDER DATED 29/06/2016 IN OP.NO.512/2013 OF FAMILY COURT, THALASSERY.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE**