Rajesh Kumar G. and Manikandan v. State of Kerala and Roji Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941** ## **Crl.MC.No. 8477 of 2017** **CC NO.1129/2016 ON THE FILES OF THE JMFC - VIII, ERNAKULAM (TEMPORARY) CRIME NO. 44/2014 OF KADAVANTHRA POLICE STATION, ERNAKULAM** ## **PETITIONERS/ACCUSED NO.2 AND 3:** |**1**|**RAJESH KUMAR G.,**| |---|---| ||**AGED 48 YEARS, S/O. GOPALAKRISHNAN NAIR,**| ||**'ANJALI', MANIKKATH CROSS ROAD,**| ||**RAVIPURAM, KOCHI - 682 016.**| |**2**|**MANIKANDAN**| ||**AGED 54, S/O. BHARATHAN MENON,**| ||**ERADI HOUSE,**| ||**EDAPALLY NORTH, KOCHI - 24.**| ||**BY ADVS.**| ||**SRI.K.R.VINOD**| ||**SMT.M.S.LETHA**| ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682 031.**| |**2**|**ROJI THOMAS**| ||**S/O. THOMAS, PARIYARAM HOUSE,**| ||**MUTTAMBALAM P.O, DEVALOKAM,**| ||**KOTTAYAM - 686 004.**| ## **SRI. M. S. BREEZ SR.PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 8477 of 2017 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioners herein are the accused Nos.2 and 3 in C.C. No.1129 of 2016 on the files of the Judicial First Class Magistrate Court-VIII, Ernakulam. In the aforesaid case, they face indictment for having committed offence punishable under Sections 468, 406, 420, 471 r/w Section 34 of the IPC. 3. The 1[st] accused in the instant case and the de facto complainant, the 2[nd] respondent herein, are friends. The 1[st] accused had availed loans from the 2[nd] respondent and from their mutual friend, a certain Roy Antony. In order to clear off the liability, the 1[st] accused decided to sell his property having an extent of 1.46 cents situated at Panampilly Nagar. The 2[nd] respondent and the aforesaid Roy Antony had decided to purchase the property for a total consideration of Rs.40 lakhs. An agreement was entered into on 1.1.2013 and the same was registered at the Sub Registrar Office, Ernakulam. A sum of Rs.1 lakh was paid to the 1[st] accused by way Crl.MC.No. 8477 of 2017 3 of advance. The 1[st] accused agreed to execute and register the sale deed on or before 30.6.2013. He did not abide by the terms of the agreement. Left with no alternative, the 2[nd] respondent and the aforesaid Roy Antony caused the issuance of a notice through their lawyer. While so, on 1.11.2013, when the encumbrance certificate of the property was obtained, it was revealed that the property had already been assigned to the 1[st] petitioner herein on 2.2.2013. The 2[nd] petitioner was the document writer, who prepared the sale deed, and the allegation against him is that he failed to verify the prior title deed and revenue records before drafting the deed. Stating these allegations, a complaint was lodged before the ADGP of police, which led to the registration of the aforesaid crime. Later, investigation was conducted and final report was laid. 4. Sri.K.R.Vinod, the learned counsel appearing for the petitioners, would urge that the 1[st] petitioner is a _bona fide_ purchaser and he was not aware that the 1[st] accused had entered into an agreement with the 2[nd] respondent and Roy Antony. According to the learned counsel, the property was purchased by the 1[st] petitioner as per Annexure-A3 sale deed dated 2.2.2013 and Crl.MC.No. 8477 of 2017 4 he has affected mutation in his name. It was after a year that the 2[nd] respondent had come forward with an allegation that the petitioners also had a role to play. If the 1[st] accused had resiled from his promise and failed to execute the sale deed after receiving advance, the 2[nd] respondent could have very well approached the jurisdictional civil court for appropriate remedies, instead of prosecuting the petitioners, contends the learned counsel. It is urged that the allegations in the final report, even if admitted as true in its entirety, the offence under Sections 406 and 420 of the IPC will not be made out. 5. Though notice was served on the 2[nd] respondent, he has not entered appearance. 6. Heard the learned Public Prosecutor, who submitted that prima facie, the allegations in the final report constitute offence under Sections 406 and 420 of the IPC and in view of the above, it would not be appropriate for this Court to quash the proceedings invoking the powers under Section 482. Crl.MC.No. 8477 of 2017 5 7. I have considered the submissions advanced and have gone through the records. 8. The case is based on an agreement for sale entered into between the 1[st] accused and the 2[nd] respondent. The 1[st] accused, after accepting an advance amount, is alleged to have reneged from his promise and failed to execute and register the sale deed. Instead, he assigned the property to the 1[st] petitioner herein. The 2[nd] petitioner is the scribe, who prepared the assignment deed. The specific allegation is that the 1[st] petitioner had purchased the property and the 2[nd] petitioner had prepared the deed without ascertaining whether the property is free from encumbrance. The question is without any other materials, the above allegation will make out an offence under Sections 406 and 420 of the IPC. ## 9. Sections 405 of the IPC defines `criminal breach of trust', which reads as under: _"405 - Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly_ Crl.MC.No. 8477 of 2017 6 _uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust"._ ## 10. Section 415 of the IPC, on the other hand, reads as under:- "415. Cheating—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 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'." 11. An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating. Crl.MC.No. 8477 of 2017 7 ## 12. The ingredients of Section 420 of the IPC are: - _"(i) Deception of any persons;_ - _(ii) Fraudulently or dishonestly inducing any person to deliver any property; or_ - _(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."_ 13. In the case on hand, the prosecution has no case that the petitioners herein had committed any act of inducement with intent to cheat the 2[nd] respondent. The mere fact that they had purchased a property without verifying whether it is free from encumbrances, will not make them liable under Section 406 or 420 of the IPC. If the 2[nd] respondent or any other person has a legal right, he could have approached the civil court for reliefs. However, by no stretch of imagination, can it be held that the petitioners are liable for the offence under Sections 406 and 420 of the IPC. There are no materials to conclude that the petitioners had any intention to cheat the 2[nd] respondent. 14. The legal position is well settled that when a prosecution Crl.MC.No. 8477 of 2017 8 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 conviction are 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. (See **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chadrojirao Angre and Ors.** [AIR 1988 SC 709]; **Prof. R.K. Vijayasarathy v. Sudha Seetharam** [2019 (1) KLD 532]. 15. Having considered the entire facts and in the light of the above precedents, I am of the view that this is one of those rare and exceptional cases, wherein this Court will be justified in terminating the criminal proceedings by invoking the powers under Crl.MC.No. 8477 of 2017 9 Section 482 of the Code. In the result, this petition is allowed. Annexure-A2 final report and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.1129 of 2016 on the file of the Judicial First Class Magistrate Court-VIII, Ernakulam are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP Crl.MC.No. 8477 of 2017 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE COPY OF THE INTERIM ORDER DATED 20.11.2014 IN CRL M.C NO.1207/2014 ANNEXURE A2 THE CERTIFIED COPY OF THE FIRST REPORT IN C.C NO. 1129/2016 IN THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT VIII, ERNAKULAM. ANNEXURE A3 THE COPY OF THE SALE DEED NO. 44/2013 DATED 02.02.2013. ANNEXURE A4 THE PROPERTY TAX PAYMENT RECEIPT AFTER EFFECTING MUTATION IN THE NAME OF THE 1ST PETITIONER. ANNEXURE A5 THE COPY OF THE BUILDING TAX PAYMENT RECEIPT ISSUED IN THE NAME OF THE PETITIONER.** ## **RESPONDENTS' EXHIBITS:** NIL