Reji Varghese v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940** **Crl.MC.No. 8305 of 2017** **CRIME NO. 2198/2017 OF Ernakulam Central Police Station, Ernakulam C.C.NO.102/2018 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM** ## **PETITIONER/ACCUSED:** **REJI VARGHESE, AGED 40 YEARS, S/O. VARGHESE, MATTACKEL (H), KALAMASSERY P.O, EERNAKULAM, PIN 683104.** **BY ADVS. SRI.V.JOHN SEBASTIAN RALPH SRI.K.J.JOSEPH (ERNAKULAM) SRI.V.JOHN THOMAS** ## **RESPONDENTS/DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, ERNAKULAM CENTRAL POLICE STATION(CRIME NO 2198/2017)REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA AT ERNAKULAM, COCHIN 31. 2 BIJI KURIAKOSE, AGED 37 YEARS, D/O. KURIKOSE, FLAT NO 402,V.M CROWN FLAT, BYEPASS, THYKOODAM, ERNAKULAM 682 031** **R2 BY BY ADVS. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE** **R1 BY SRI.C.K.PRASAD, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 8305 of 2017** **2** ## **ORDER** The petitioner and the 2[nd] respondent are divorcees. The petitioner is a US citizen, but a person of Indian origin. He had a minor son and was on the look out for a prospective bride. As is wont in these days, he registered himself in a matrimonial website. He met the 2[nd] respondent online in the month of July, 2016 and they became good friends. They decided to get married and on 15.7.2017, the same was solemnized as per the provisions of the Christian Marriage Act, 1972. They started residing together in the apartment of the 2[nd] respondent. Later, they stayed in a hotel at Ernakulam for a couple of days. 2. According to the 2[nd] respondent, she was assured by the petitioner that he is a permanent resident of the United States and that she would be taken with him to the US after the marriage. On 1.8.2017, the petitioner and his son left the hotel after informing her that they would make arrangements to procure a VISA. They were not to be seen thereafter. Though she tried to contact him, he willfully avoided her. She promptly lodged a complaint before the police on **Crl.MC.No. 8305 of 2017** **3** 3.8.2017, based on which Crime No.2198 of 2017 was registered under Sections 406 and 511 of 420 of the IPC. Later, investigation was completed and final report was laid before the jurisdictional Court. 3. The above proceedings are sought to be quashed by this petition filed under Section 482 of the Cr.P.C. 4. The learned counsel appearing for the petitioner submitted that the criminal proceeding initiated against the petitioner is a clear abuse of process. The Christian Marriage Officer, who has been cited by the prosecution and also the certificate of marriage would show that the marriage was solemnized as per law. No such assurance was given by the petitioner that she would be taken by him immediately after the marriage. Obtaining a VISA to the US is a long drawn process and steps were taken by the petitioner. The petitioner had come for a short visit and had to return back. This was known to the 2[nd] respondent as well. However, she insisted the petitioner not to leave. This led to some difference of opinion between them. 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 her are without basis, argues the learned counsel. The ingredients of the **Crl.MC.No. 8305 of 2017** **4** offence under Sections 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 her at the inception itself. 5. Per contra, the learned counsel appearing for the 2[nd] respondent submitted that the petitioner had intentionally deceived the 2[nd] respondent and she was made to believe that she would be taken to the United States with him. If she was not so deceived, she would not have acted in the manner she did, argues the learned counsel. 6. It is trite 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 uncontroverted allegations as made in the complaint establish the offence. When approached for invoking the powers under Section 482 of the Cr.P.C., this Court will not be justified in analyzing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction conferred on this Court cannot be exercised to stifle a legitimate prosecution. It is also settled that power under Section 482 of the Code is to be used sparingly and only in rare cases. (See **State of Haryana and Ors. v. Bhajan Lal** **Crl.MC.No. 8305 of 2017** **5** **and Ors** . [992 Supp. (1) SCC 335]; **State of T.N. v. Thirukkural Perumal** [(1995) 2 SCC 449] and **Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and Anr** . [(2006) 7 SCC 188)]). 7. In the light of the above well settled principles, if the case of the prosecution is analysed, it can be seen that the marriage between the parties was solemnized as per law. Her case is that the petitioner herein had assured her that she would be taken to the US along with him. His failure to do so after solemnization of the marriage is the spark that prompted the wife to initiate criminal prosecution against the husband. Now, the question is whether the offence of cheating or criminal breach or trust is attracted in the facts of the instant case. 8. The essential ingredients to attract the offence of cheating are: - (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 any property to any person, or to consent that any person shall retain any property; or **Crl.MC.No. 8305 of 2017** **6** - (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 wilfully 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. **Crl.MC.No. 8305 of 2017** **7** 10. Having gone through the nature of allegations, I am of the view that the ingredients of the offences alleged are not made out in the final report laid against the petitioner. The petitioner had admittedly, married the de facto complainant as per law. They had stayed together for some time as well. He is admittedly, a US citizen, who had come down to India with his son. Even according to the de facto complainant, she had been interacting with the petitioner for over a year, after meeting online in the year 2016. The case of the petitioner is that he would be able to take his wife only after completing the formalities for accommodating her in the US with proper travel documents and not prior to that. For completing the formalities and for procuring a VISA for their stay together, some breathing time was required. However, the de facto complainant, without even batting an eye lid, set the law in motion by initiating criminal proceedings within a few days after the marriage. 11. In **Haridaya Ranjan Prasad Verma & Ors. v. State of Bihar & Anr.** [2000 CriLJ 2983], while explaining the subtle difference between a case of breach of contract and the offense of cheating, in the facts of that case, the Apex Court had held thus: **Crl.MC.No. 8305 of 2017** **8** "In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. it depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. therefore it is the intention which is the gist of the offence. 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 promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. 12. If all that is established is that a representation was made by the accused which was not honored subsequently, solely on that ground, criminal liability cannot be foisted on the accused. Failure to keep a promise by one of the spouses to the other will not attract the offenses which are alleged. The de facto complainant will be well within her rights to seek remedy for breach of contract in a civil court or for appropriate remedies from a Family Court. 13. In **State of Karnataka** v. **L. Muniswamy and others** [(1977) 2 SCC 699], a three-Judge Bench of the Apex Court Court **Crl.MC.No. 8305 of 2017** **9** referred to Section 482 of the Code and in paragraph 7 (pg. 703) of the Report 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 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.” **Crl.MC.No. 8305 of 2017** **10** ## 14. 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.” 15. 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 to quash the proceedings against the petitioner. **Crl.MC.No. 8305 of 2017** **11** In the result, this petition will stand allowed. Annexure-2 final report and all proceedings pursuant thereto against the petitioner now pending as C.C. No.103 of 2018 on the file of the Chief Judicial Magistrate Court, Ernakulam are quashed ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** DSV/- //TRUE COPY// P.A. TO JUDGE **Crl.MC.No. 8305 of 2017** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 CERTIFIED COPY OF THE FIR IN CRIME NO 2198/2017 OF CENTRAL POLICE STATION, ERNAKULAM ANNEXURE 2 TRUE COPY OF THE FINAL REPORT IN C.C.NO.103/2018 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **ANNEXURE 3 TRUE EXTRACT OF THE MARRIAGE REGISTRATION BOOK.** ## **RESPONDENT'S/S EXHIBITS** _**NIL**_ _**//TRUE COPY//**_ _**P.A.TO JUDGE**_