Rekha Benny and Niya Benny v. State of Kerala and Kurien Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** **Crl.MC.No.2881 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CC 533/2015 OF JMFC-I, KAKKANAD (TEMPORARY)** **CRIME NO.209/2014 OF Thrikkakara Police Station , Ernakulam** ## **PETITIONERS/ACCUSED NO.1 & 2:** - **1 REKHA BENNY AGED:57 YEARS, W/O BENNY, PALAL VEEDU, CHITTETHU KARA, KAKKANAD, ERNAKULAM DISTRICT** - **2 NIYA BENNY @ AMBILY AGED:37 YEARS, D/O. REKHA BENNY, PALAL VEEDU, CHITTETHU KARA, KAKKANAD, ERNAKULAM DISTRICT** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA., ERNAKULAM-682031 (CRIME NO. 209/2014 OF THRIKKAKARA POLICE STATION, ERNAKULAM DISTRICT)** - **2 KURIEN VARGHESE @ JOSHY VELIYATHU VEEDU, THRIKKALATHUR KARA, MULAVUR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** **R2 BY ADV. SRI.J.JULIAN XAVIER R2 BY ADV. SRI.RAJU JOSEPH SR. R2 BY ADV. SRI.ROY JOSEPH** ## **OTHER PRESENT:** **SRI.RAJU JOSEPH SR.COUNSEL FOR RESPONDENT, SRI C S HRITHWIK (SR.PP )** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.11.2019, THE COURT ON 13.02.2020 PASSED THE FOLLOWING:** Crl.MC 2881/2016 2 ASHOK MENON, J. -----------------------------------Crl.MC No.2881 of 2016 ------------------------------------Dated this the 13[th] day of February, 2020 ## O R D E R A mother and daughter implicated in CC No.533/2015 on the files of the Judicial First Class Magistrate's Court-I, Kakkanad for having allegedly committed offences punishable under Sections 406 and 420 read with Section 34 IPC, are before this Court seeking to quash the proceedings against them under Section 482 Cr.PC. 2. The second respondent herein, alleged to be a close relative of the petitioners, filed Annexure-I complaint against the petitioners for allegedly committing the offences of criminal breach of trust and cheating in furtherance of common intention before the Magistrate, which was forwarded to the Trikkakara Police under Section 156(3) Cr.PC; resulting in registering of Crime No.209/2014 of that Police Station and ending in filing of Annexure-II final report. Crl.MC 2881/2016 3 3. The allegations in the complaint and the final report in brief are that the petitioners in furtherance of common intention, dishonestly induced the complainant to agree to purchase 55 cents of land belonging to the first petitioner on the basis of an oral agreement for sale and delivered a sum of Rs.20 lakhs to them as advance sale consideration. The petitioners being entrusted with the money dishonestly misappropriated it, retracted from the promise to sell and stealthily sold the property to some one else and thereby committed the above offences. 4. The petitioners see the prosecution as an insidious plan to deprive the widowed first petitioner of her property by the second respondent/complainant with the intention to grab her property raising all sorts of untenable and false allegations of an alleged agreement for sale which never happened. The criminal prosecution is only a tactics to pressurise the petitioners to part with their valuable property. 5. To constitute an offence of cheating and criminal breach of trust as defined under Sections 405 Crl.MC 2881/2016 4 and 419 IPC, must essentially contain certain ingredients which can be encapsulated as thus: - (i) Accused was entrusted with property having domain over that. - (ii)He converts that property dishonestly to his own use or dishonestly uses or disposes it. - (iii) The accused had fraudulently or dishonestly induced the victim by deceiving him and thereby persuaded him to deliver any property to him. - (iv)The person so deceived should be intentionally induced to do so or omit to do anything which he would not do or omit if he were not so deceived. - (v) It is also essential that 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. 6. Perusal of the details of the complaint at Annexure-I indicates that the second respondent/ complainant had close acquaintance with two brothers of the first petitioner, namely Varghese and Kuruvila. The brothers suffer business loss and Banks proceeded Crl.MC 2881/2016 5 to realise the amount due from them. The first petitioner's husband, late Bennykutty, came to their assistance to save the property belonging to his brothers-in-law and purchased their 55 cents of land in Muvattupuzha town for a paltry sum of Rs.82 lakhs, on undertaking that once the property is sold, their share of money would be given to them after realising the money he had invested to bail them out of difficulty. Bennykutty died in the year 2008 without fulfilling his promise to his brothers-in-law. He also executed a Will in favour of the first petitioner bequeathing the entire property to her. Consequent to the demise of the Bennykutty, his daughter, the second petitioner, took over management of his assets. Without abiding to the undertaking that her deceased father had with his brothers-in-law, the petitioners attempted to enter into an agreement to sell the property to Puthanpurackal Ajith and Thottathil Biju at the rate of Rs.4,18,000/- per cent and Rs.10 laks was received as advance sale consideration. Coming to know about this sale agreement, Kuruvila approached the Crl.MC 2881/2016 6 petitioners and informed them that the second respondent was willing to purchase the property at the rate of Rs.5 lakhs per cent and selling it at the rate of Rs.4,18,000/- per cent was a huge loss. Consequently, the second petitioner contacted the second respondent over phone and enquired whether he was willing to purchase the property at that price, and demanded a sum of Rs.20 lakhs to be paid as advance, to which the second respondent agreed, and paid that amount on 4.10.2009. Utilising that amount, the petitioners rescinded from the agreement with Ajith and Biju on 5.10.2009 by paying them Rs.20 lakhs. A copy of the agreement entered into by the first petitioner with the aforesaid Ajith and Biju and the endorsement made on 5.10.2009 consequent to the payment of Rs.20 laKhs is at Annexure-R2(a) produced by the second respondent. The second petitioner thereafter contacted the second respondent asking him to pay the entire balance amount and to get the sale deed executed without informing her uncles, Kuruvila and Varghese. The second respondent was not willing for that, since Crl.MC 2881/2016 7 he knew that there was settlements to be made to Kuruvila and Varghese. By that time, one Vijayan from Thodupuzha filed a suit against Varghese before Sub Court, Muvattupuzha and got the subject property attached. The petitioners were approached by the second respondent for reimbursement of the advance amount he had paid them. But they expressed their inability to pay the amount without selling the property, and for which, they had to get the attachment from the Sub Court, Muvattupuzha lifted. This resulted in a delay. However, the petitioners stealthily got the attachment order vacated, and sold the property to someone else. Despite the sale of the property, the petitioners did not repay the amount paid to them by the second respondent and thereby committed breach of trust and also cheated them. On 23.1.2014, the second respondent filed a complaint before the Thrikkakara Police Station which they did not entertain. Consequently, Annexure-I complaint was filed by the second respondent. 7. The learned counsel appearing for the Crl.MC 2881/2016 8 petitioners, the learned Senior Counsel, Sri. Raju Joseph, appearing for the second respondent and the learned Public Prosecutor were heard. 8. The learned counsel appearing for the petitioners submits that the petitioners have been implicated in a dispute which is purely civil in nature. There is nothing to show that there was an agreement for sale as alleged by the second respondent. There is also no evidence regarding payment of Rs.20 lakhs towards advance sale consideration as alleged by the second respondent. The learned counsel submits that even if there was a breach of the alleged agreement for sale by the petitioners not performing their part of the contract, it will not give rise to any criminal liability. Failure to abide by the agreement to perform their part of the contract is not a criminal offence. It is also interesting to note that the second respondent has not filed any civil suit either for claiming specific performance of the contract or for return of the advance amount. Five years have elapsed since the alleged date of contract Crl.MC 2881/2016 9 and it may not be possible for him to approach the civil court and that is the reason why he has filed a criminal case in order to coerce the petitioners who are ladies, to succumb to his dubious designs and insidious plans. 9. The learned counsel relies on some decisions of this Court in support of his arguments. In Kanakam Thampi and Others v. State of Kerala and Another [2015 KHC 3690] , it is held that a mere failure to keep a promise subsequently cannot be presumed as an act leading to cheating. It has to be shown that the intention was dishonest at the time of making such promise and such a dishonest intention cannot be inferred from a mere fact that he/she could not subsequently fulfill the promise. 10. In Reji Varghese v. State of Kerala and Another [2019 KHC 167] , it was held that solely on the ground that a representation was made by the accused which was not honoured subsequently, a criminal liability cannot be foisted on the accused. 11. In Vinod Natesan v. State of Kerala and Crl.MC 2881/2016 10 Others [2018 KHC 6990] , the Hon'ble Supreme Court has held that when a dispute between the parties, which at the most can be said to be only a civil dispute, when tried to be converted into a criminal dispute, such proceedings need to be quashed under Section 482 Cr.PC. It is further held by the Apex Court that merely because the original accused might not have paid the amount due and payable under the agreement, the offence of cheating or breach of trust is not attracted. 12. Per contra, the learned Senior Counsel appearing for the second respondent submits that some times a case which may apparently look to be of a civil nature, may involve a commercial transaction. But such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes. 13. Coming back to the facts of the instant case, it is seen that the second respondent allegedly parted with a sum of Rs.20 lakhs without a scrap of paper to evidence the alleged payment. A sum of Rs.20 lakhs is Crl.MC 2881/2016 11 usually expected to be parted either by issuance of a cheque, draft or by transfer through accounts. There is no allegation in the complaint about how the amount was paid. The second respondent would say that the first petitioner's husband had some financial dealings with his brothers-in-law and had agreed to sell their property purchased by him from them and pay them the balance after realising the money he had invested to bail them out of a debt liability they were into. There is absolutely no evidence regarding such an undertaking. All these stories about oral agreements regarding the property without any written documents to evidence it, are difficult to swallow. Part performance of an agreement for sale cannot be enforced unless it is written down and even registered. The second respondent entered into an agreement. The case of the second respondent about his agreeing to purchase the petitioners' property for a huge amount entering into an oral agreement and parting with a huge sum as advance sale consideration even without a paper to evidence, cannot be taken without a pinch of salt. Crl.MC 2881/2016 12 The second respondent being a successful businessman cannot be expected to be so knave regarding purchase of such valuable property. 14. There is another interesting point to be taken note of. There is a delay of more than five years in filing the complaint. The second respondent states that he was expecting the petitioners to return the advance amount. It is also stated that the petitioners had sought time to pay back the amount because there was an attachment on the property in a suit filed by one Vijayan against Varghese, the brother of the first petitioner. How can a property belonging to the first petitioner be attached in a suit filed by someone against her brother, is beyond comprehension. For the long period of five years, the second respondent was allegedly waiting for the petitioners to pay back his amount to be repaid, and he did not take any action. The only document that the second respondent relies on to substantiate his case, is that the first petitioner had rescinded from Annexure-R2(a) agreement for sale with two persons named Ajith and Biju, after making Crl.MC 2881/2016 13 Annexure-R2(b) endorsement on it on payment of Rs.20 lakhs. There is no indication that the amount that was repaid by the first petitioner to the purchaser of the property as per Annexure-R2(a) was provided by the second respondent. 15. In Manoj Kumar Sharma and Others v. State of Chhattisgarh and Another [2016 KHC 6590] , the Hon'ble Supreme Court has held as thus : "18. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. In our opinion, such extraordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by Respondent No.2 herein against the appellants, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, Respondent No.2 herein has tried to rope the appellants in criminal proceedings. We are of the confirmed opinion that continuation of the criminal proceedings against the appellants pursuant to this FIR is an abuse of the process of law. Therefore, in the interest of justice, the FIR deserves to be quashed." In Mohd. Ibrahim v. State of Bihar [(2009) 8 SCC 751] , the Honourable Supreme Court has held thus: Crl.MC 2881/2016 14 "This Court has time and again drawn attention to growing tendency of the complainants attempting to the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes." 16. In the instant case, it is adequately clear that the second respondent could not have maintained a civil suit because of lapse of time and also for want of evidence. He could only have pressurised the petitioners by lodging a criminal case against them and making the duo stand in the dock to answer the criminal prosecution. The dubious design of the second respondent will not be materialised, unless there is prima facie case made out by him to proceed with the criminal prosecution. Under the circumstances, I find that prima facie there is no evidence that the petitioners had entered into an agreement for sale of the first petitioner's property with the second respondent and had received a sum of Rs.20 lakhs after Crl.MC 2881/2016 15 dishonestly inducing him to deliver the property. The Criminal M.C. has to be allowed. In the result, the Criminal M.C. is allowed and the entire proceedings as against the petitioners herein in CC No.533/2015 on the files of the Judicial First Class Magistrate’s Court-I, Kakkanad shall stand quashed under Section 482 Cr.PC and the petitioners/accused are discharged. ## **Sd/-** ## **ASHOK MENON** **JUDGE** jg Crl.MC 2881/2016 16 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE-I** **CERTIFIED COPY OF THE FIRST INFORMATION REPORT ALONG WITH A COPY OF THE COMPLAINT IN CRIME NO. 209/14 OF THRIKKAKARA POLICE STATION** ## **ANNEXURE-II** **CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 209/14 OF THRIKKAKARA POLICE STATION.** **RESPONDENT'S EXHIBITS:** - **ANNEXURE-R2(a) COPY OF THE SALE AGREEMENT DATED 29.9.2009 ENTERED INTO BETWEEN ONE REKHA BENNY, THE 1ST ACCUSED AND ONE AJITHKUMAR AND SHIJU V THOTTAM** - **ANNEXURE-R2(b) COPY OF THE REVERSE SIDE OF PAGE NO.4 OF ANNEXURE-R2(a)** - **ANNEXURE-R2(c) COY OF THE STATEMENT OF THE 2ND RESPONDENT** - **ANNEXURE-R2(d) COPY OF THE STATEMENT OF ONE RENJAN, S/O.BHASKARAN, PURAMARATHOTTATHIL HOUSE, MARADI VILLAGE.** - **ANNEXURE-R2(e) COPY OF THE STATEMENT OF DR.M.K.JACOB, MADAPARAMBIL HOUSE, MAZHAVANOOR SOUTH, MAZHAVANOOR VILLAGE.** **ANNEXURE-R2(f) COPY OF THE STATEMENT OF SRI.KURUVILA, MADAPPARAMBIL HOUSE, THIRUVAMKULAM, WHO IS THE BROTHER OF THE ACCUSED/PETITIONERS.**