RadhaKrishnan @ RadhaKrishna Pillai v. The S.I. of Police, Pandalam Police Station, Pathanamthitta; The District Police Chief, Pathanamthitta; Gracy Jacob (De facto Complainant); State of Kerala represented by Public Prosecutor, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941** ## **Crl.MC.No.4661 of 2017** **CRIME NO. 900/2017 OF Pandalam Police Station , Pathanamthitta** ## **PETITIONER/ACCUSED:** **RADHAKRISHNAN @ RADHAKRISHNA PILLAI AGED 58 YEARS,S/O.JANARDHANAN PILLAI,PULARI VEEDU,PANDALAM VILLAGE,ADOOR TALUK, PATHANAMNTHITTA DISTRICT.** **BY ADV. SRI.V.SETHUNATH** ## **RESPONDENTS/COMPLAINANT/STATE:** - **1 THE S.I. OF POLICE, PANDALAM POLICE STATION PATHANAMTHITTA DIST.PIN-689501.** - **2 THE DISTRICT POLICE CHIEF PATHANAMTHITTA,PIN:689645.** **3 GRACY JACOB AGED 437 YEARS, W/O.LATE JACOB GEORGE, MOOLAYIL HOUSE,T.C.NO.10/1120,NALANCHIRA.P.O,KUDAPPANAKU NNU VILLAGE,THIRUVANANTHAPURAM DISTRICT PIN695015,(DEFACTO COMPLAINANT).** - **4 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,PIN-682031.** **BY ADVS.** **SRI.S.ARAVIND SRI.K.SASIKUMAR PUBLIC PROSECUTOR SMT.K.K.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.04.2019, THE COURT ON 20.05.2019 PASSED THE FOLLOWING:** Crl.M.C.No.4661/2017 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.4661 of 2017 ------------------------------------------Dated this the 20[th] day of May, 2019 ## **O R D E R** The petitioner is the sole accused in the case registered as Crime No.900/2017 of the Pandalam police station under Sections 406, 420 and 506 of the Indian Penal Code. The petitioner seeks to quash the proceedings initiated against him, by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The case against the petitioner is registered on the basis of the first information statement given to the police by the third respondent. The material averments in that statement are the following: The husband of the third respondent died in the year 2013. He had obtained a loan of Rs.65,000/- from the petitioner in the year 2004 by giving his property having an Crl.M.C.No.4661/2017 3 extent of five cents with the house therein as security. There was an agreement between the petitioner and the husband of the third respondent that on repayment of the amount of Rs.65,000/-, the aforesaid property shall be given back by the petitioner. The husband of the third respondent repaid the amount of Rs.65,000/- to the petitioner but he did not reconvey the property to him. The agreement was renewed twice between them. Though a total amount of Rs.2,10,000/- was paid to the petitioner by the husband of the third respondent, the property was not re-assigned in his name. The petitioner has misappropriated the amount and cheated the third respondent and her husband. Before the death of her husband, the third respondent had talked with the petitioner with regard to the matter. Then, the petitioner threatened her that he would kill her and her daughter. 3. After completing the investigation of the case, the police has filed chargesheet against the petitioner (Annexure-9) for the offences punishable under Sections 406, 420 and 506(i) I.P.C and it has been taken on file by the Court of the Judicial Crl.M.C.No.4661/2017 4 First Class Magistrate, Adoor as C.C.No.2691/2017. 4. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the third respondent. 5. Annexure-2 is the copy of the sale deed executed by the husband of the third respondent in favour of the petitioner. It is dated 07.10.2004. As per this document, the total consideration paid by the petitioner for the property and the house therein was not Rs.65,000/- but Rs.1,00,000/-. 6. As per the charge sheet filed against the petitioner, it was in the year 2004 that the petitioner purchased the property belonging to the husband of the third respondent for an amount of Rs.65,000/- on the basis of an agreement that the property would be reconveyed on repayment of the amount. As per the charge sheet, on 16.03.2005, the husband of the third respondent had paid an amount of Rs.10,000/- and on 18.10.2005, a further amount of Rs.2,00,000/- to the petitioner. The husband of the third respondent died in the year 2013. It is pertinent to note that till his death in the year 2013, the husband Crl.M.C.No.4661/2017 5 of the third respondent had not made any complaint against the petitioner alleging that the petitioner had misappropriated the property or the amount and cheated him. He had also not filed any suit against the petitioner seeking any relief in respect of the property. The third respondent reported the matter to the police only on 10.04.2017. 7. Dishonest inducement of a person to deliver any property to any person or to consent that any person shall retain any property or to do or to omit to do anything is an essential ingredient of the offence of cheating defined under Section 415 I.P.C which is punishable under Section 420 I.P.C. In the instant case, there is no allegation in the first information report or the final report that the petitioner had induced the husband of the third respondent to do or omit to do any such act. Therefore, even if the entire case alleged against the petitioner is accepted as true, an offence punishable under Section 420 I.P.C is not made out against him. 8. There is distinction between mere breach of contract and the offence of cheating. Mere breach of contract cannot give rise Crl.M.C.No.4661/2017 6 to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. To hold a 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. 9. In the instant case, the document executed and registered by the husband of the third respondent in favour of the petitioner discloses an outright sale of the property. Even if it is accepted that the transaction between the petitioner and the husband of the third respondent was a loan transaction and that the petitioner had agreed to reconvey the property in the name of the husband of the third respondent, mere breach of promise made by the petitioner will not amount to cheating. The position is the same with regard to the subsequent agreements alleged to have been executed by the petitioner and the husband of the third respondent. As noticed earlier, if it was really a case of Crl.M.C.No.4661/2017 7 cheating, the husband of the third respondent would have taken legal action against the petitioner when he was alive. The very fact that he did not take any action against the petitioner till his death in the year 2013, for a long period of eight years, would indicate that the prosecution initiated against the petitioner by the third respondent, nearly four years after the death of her husband, is without any basis. 10. The offence of criminal breach of trust, which is made punishable under Section 406 I.P.C, is defined under Section 405 I.P.C. The essential ingredient of the offence defined under Section 405 I.P.C is dishonest misappropriation, disposal or use of a property entrusted with a person to the detriment of the person who entrusted it. It contemplates a transaction where the person who transfers possession of the property to the accused still remains the legal owner of the property and the accused has only the custody of the property to be kept or disposed of by him for the benefit of the other party. In the instant case, the property was sold to the petitioner by the husband of the third respondent by a registered document and the petitioner had Crl.M.C.No.4661/2017 8 become the absolute owner of the property. Therefore, the offence of criminal breach of trust, punishable under Section 406 I.P.C, is also not made out against the petitioner. 11. Another allegation against the petitioner is that he threatened the third respondent and her daughter that he would kill them. What is stated in the first information statement given by the third respondent to the police is that, before the death of her husband, when she asked the petitioner about the matter, he threatened that he would kill her and her daughter. As noticed earlier, the husband of the petitioner had died in the year 2013. The first information statement is given to the police only on 10.04.2017. Moreover, the allegation in the charge sheet filed against the petitioner is that it was after the death of the husband of the third respondent that the petitioner threatened her. 12. Section 503 I.P.C defines the offence of criminal intimidation. It states that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act Crl.M.C.No.4661/2017 9 which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. The aforesaid provision would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any act. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant (See **Manik Taneja v. State of Karnataka: (2015) 7 SCC 423** ). The gist of the offence is the effect which the threat is intended to have Crl.M.C.No.4661/2017 10 upon mind of the person threatened. It is essential that the threat made is of a nature and extent to unsettle the mind of the person on whom it operates and take away from his acts that element of free voluntary action. 13. In the present case, the first information statement given to the police by the third respondent does not contain any averment that the threat allegedly made by the petitioner caused any alarm to her. From the facts and circumstances of the case, it appears that there was no intention on the part of the petitioner to cause alarm in the mind of the third respondent. It follows that the offence punishable under Section 506(1) I.P.C is also not made out against the petitioner. 14. The dispute which allegedly existed between the petitioner and the husband of the third respondent was essentially of a civil nature. The husband of the third respondent did not take any legal action against the petitioner till his death in the year 2013. The petitioner reported the matter to the police only on 10.04.2017 raising allegations against the petitioner in connection with the transaction which is essentially of a civil Crl.M.C.No.4661/2017 11 nature. The offences alleged against the petitioner are not made out from the allegations in the first information report or the final report. The chances of ultimate conviction of the petitioner is bleak and no useful purpose is likely to be served by continuing the prosecution against him. Continuation of the proceedings against the petitioner would be an abuse of the process of court. 15. 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 the prosecution to continue. Where, in the opinion of the court, the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may quash the proceeding even though it may be at a preliminary stage (See **Manik Taneja v. State of Karnataka: (2015) 7 SCC 423** ). Crl.M.C.No.4661/2017 12 16. It is a warrant case instituted on police report. True, the petitioner can file application under Section 239 of the Code for discharge before the Magistrate concerned. No doubt, the Magistrate can discharge the accused, if he considers the charge to be groundless. But that does not mean that the accused cannot approach this Court under Section 482 of the Code to have the proceeding against him quashed (See **Pepsi Foods Limited v. Special Judicial Magistrate: AIR 1998 SC 128** ). 17. Consequently, the petition is allowed. The proceedings against the petitioner in C.C.No.2691/2017 on the file of the Court of the Judicial First Class Magistrate, Adoor, based on Annexure-1 first information report and Annexure-9 charge sheet, are hereby quashed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/15/05/2019 Crl.M.C.No.4661/2017 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **ANNEXURE 1 THE TRUE COPY OF THE F.I.R.IN CRIME NO.900/2017 OF PANDALAM POLICE STATION** - **ANNEXURE 2 THE TRUE COPY OF THE SALE DEED NO.2491/2004 OF PANDALAM S.R.O.** - **ANNEXURE 3 THE TRUE COPY OF THE PLAINT IN O.P.N,O.403/2006 ON THE FILE OF THE FAMILY COURT,THIRUVALLA** - **ANNEXURE 4 THE TRUE COPY OF THE JUDGMENT OF THE FAMILY COURT,THIRUVALLA DATED 4.7.2007** - **ANNEXURE 5 THE TRUE COPY OF THE PLAINT FILED BY THE DEFACTO COMPLAINANT IN O.S.353 OF 2006 ON THE FILE OF THE MUNSIFF'S COURT,ADOOR** - **ANNEXURE 6 THE TRUE COPY OF THE JUDGMENT IN O.P.NO.1242/2011 ON THE FILE OF THE FAMILY COURT,THIRUVALLA.** - **ANNEXURE 7 TRUE COPY OF THE ACKNOWLEDGMENT SLIP ISSUED BY THE OFFICE OF THE DISTRICT POLICE CHIEF** - **ANNEXURE 8 THE TRUE COPY OF THE ORDER OF THIS COURT IN B.A.3167/2017.** RESPONDENTS' EXHIBITS: NIL TRUE COPY P.S TO JUDGE