Prakasan K.P. v. State of Kerala and B.H Abdul Kader

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** **Crl.MC.No. 2226 of 2016 () ---------------------------** **AGAINSTCC 1563/2013 of J.M.F.C.-II,HOSDRUG CRIME NO. 802/2012 OF BEKAL POLICE STATION , KASARGOD** **PETITIONER(S): -------------** **PRAKASAN K.P. S/O. PEETHAMBARAN,AGED 44 YEARS, RESIDING AT KAYYANICKAL (H), MANALVAYAL P.O,PULPALLY, WYNAD DIST.** **BY ADVS.SMT.P.DEEPTHI SRI.SABU JOHN** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, BEKAL POLICE STATION,KASARAGOD DISTRICT 671 121 REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. B.H ABDUL KADER S/O. IBRAHIM,KALIKADAVTH HOUSE, POOCHAKKAD, KEEKKANAM, KASARAGOD 671 121** **R2 BY ADV. SRI.K.P.ABDUL RASSAK R1 BY PUBLIC PROSECUTOR SRI. AMJAD ALI.** **THIS CRIMINAL MISC. CASE HAS BEEN FINALLY HEARD ON 03-102016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 2226 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **-----------------------** **A1 CERTIFIED COPY OF THE FIR AND F1 STATEMENT IN CRIME NO.802/2012 OF BEKAL POLICE STATION DATED 28/11/2012** **A2 CERTIFIED COPY OF THE FINAL REPORT IN C.C NO 1563/2013 OF JFMC II HOSDURG DATED 01/07/2013** **A3 CERTIFIED COPY OF THE AGREEMENT MADE BETWEEN THE 2ND RESPONDENT AND 1ST ACCUSED DATED 20/10/12** **A4 TRUE COPY OF THE STATEMENT OF THE CW6 TO THE FIRST RESPONDENT DATED 10/12/12.** **A5 TRUE COPY OF THE STATEMENT OF THE CW6 DATED 30/06/2013** **A6 TRUE COPY OF THE SEIZURE MAHZAR PREPARED BY THE FIRST RESPONDENT DATED 10/12/12.** **ANNEXURES PRODUCED ALONG WITH CRL.MA.7488 OF 2016** **ANNEXURE 1: COPY OF CRIME NO.1085 DATED 21.12.2012 OF SULTHAN BATHERY POLICE STATION.** **ANNEXURE 2: COPY OF CRIME NO.393/2012 DATED 12.12.2012 OF AMBALAVAYAL POLICE STATION** **ANNEXURE 3: COPY OF CRIME NO.411/2012 DATED 21.12.2012 OF AMBALAVAYAL POLICE STATION.** **RESPONDENTS' ANNEXURES:** **NIL** **-----------------------** **TRUE COPY** **P.A. TO JUDGE.** **kp** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2226 of 2016 - - - - - - - - - - - - - - - - Dated 3[rd] October, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.This petition is filed under Section 482 of the Code of Criminal Procedure. - 2.The petitioner is the 3[rd] accused in C.C. No 1563 of 2013 on the file of the Judicial Magistrate of the I Class – II, Hosdurg. He along with two others stand indicted for offenses punishable under section 420 of the IPC. - 3.Annexure A 1 is the First Information Statement furnished by the 2[nd] respondent/ de facto complainant based on which the crime was registered. According to the first informant, he is the owner of an Eicher lorry bearing registration No.KL-14-E 4158. The 1[st] accused one Mohammed @ Mammi, who also happened to be his friend, approached him and inquired about his willingness to sell his vehicle. The 2[nd] respondent was told that if he had any plans to sell the vehicle, the 1[st] accused would Crl.M.C. No.2226 of 2016 -2- bring two of his friends, one Shan Thomas/1[st] accused and his partner, Prakashan, the petitioner herein. Thereafter all the accused are alleged to have come to his house on 20.10.2012 and after negotiation an agreement was entered into between the 2[nd] respondent and the 1[st] accused with regard to the sale of the Lorry. As per the terms of the agreement, the 1[st] accused agreed to purchase the bus for a sum of Rs 2,32,000/-. A sum of Rs.50,000/- was paid by way of advance to the 2[nd] respondent. It was agreed that the balance amount of Rs.182,000/- would be paid on or before 31.10.2012 . It was undertaken by the 1[st] accused in the agreement , that if the balance amount was not paid as agreed, the 2[nd] respondent would be at liberty to repossess the vehicle or in the alternative, the accused would pay a sum of Rs. 5000/ per day to the 2[nd] respondent. It is alleged that the 1[st] accused had backed out on his promise and failed to return the bus or pay the balance amount. It was Crl.M.C. No.2226 of 2016 -3- based on these allegations that Crime No.802 of 2012 was registered by the Sub Inspector of Police, Bekkal Police Station. The said officer after investigation laid Annexure A2 final report before the jurisdictional Court. - 4.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. - 5.According to the learned counsel appearing for the petitioner, the petitioner has absolutely nothing to do with the acts of either the 1[st] accused or 2[nd] accused. Referring to Annexure A1 FI Statement it is submitted that it was the 2[nd] accused Muhammed @ Mammi, who had approached the de facto complainant for the purchase of the vehicle. It is further submitted that Annexure A3 agreement is entered into between de facto complainant and the 1[st] accused. In so far as the petitioner is concerned the only allegation is that he was present along with the other accused when they had approached the de facto complainant with an offer to purchase the vehicle. Crl.M.C. No.2226 of 2016 -4- According to the learned counsel, the prosecution has no case that the petitioner herein had made any representation to the 2[nd] respondent or that the representation was made knowing the same to be false. - 6.The learned counsel appearing for the 2[nd] respondent countered the submission of the learned counsel and submitted that the prosecution records would reveal that the petitioner was also involved in the acts of the other accused. It is further submitted that the petitioner is an inveterate criminal with active role in several other crimes of instant nature. - 7.I have bestowed my anxious consideration to the materials on record and also the submissions advanced. In Annexure A1 FI statement only passive reference is made to the petitioner herein. Only allegation is that he he was also present along with accused 1 and 2 when the transaction involving the Eicher lorry had taken place. Annexure A3 agreement for sale also sheds ample light on Crl.M.C. No.2226 of 2016 -5- the terms of the agreement entered into between the 2[nd] respondent and the 1[st] accused. 8.However to attract the offense under section 420 of the IPC , the prosecution cannot rest content with the above. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. It is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. However, perusal of the records in the instant case would not reveal that the petitioner had Crl.M.C. No.2226 of 2016 -6- made any representation knowing the same to be false. It appears that the petitioner has been roped in without any sufficient materials . It cannot be said that the offence under Section 420 of the IPC is attracted against him. Allegations are all centered around the 1[st] and 2[nd] accused . ## 9.In **Madhavrao Jiwajirao Scindia and Others v. Sambhajirao Chandrojirao Angre and Others** [1988 (1) SCC 692], a three - Judge Bench of the Apex Court has laid down the law as to quashment of proceedings under Section 482 Cr.P.C. as follows: "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made _prima facie_ establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate Crl.M.C. No.2226 of 2016 -7- conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 10.I have no doubt in my mind that the pendency of the criminal proceedings against the petitioner is nothing but an abuse of the process of the Court and the power under Section 482 of the Cr.P.C. has to be exercised in order to quash the proceedings. In the result this petition is allowed. Annexure A2 final report and all proceedings pursuant thereto against the petitioner now pending as C.C.No.1563 of 2013 on the file of the Judicial Magistrate of 1[st] Class II, Hosdurg are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-3.10.16