Saj S/o Salim v. State of Kerala and Selvaraj (Crl.MC.No. 583 of 2016)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938** **Crl.MC.No. 583 of 2016 ()** **-------------------------CRIME NO. 843/2011 OF VENJARAMOODU POLICE STATION, THIRUVANANTHAPURAM ---------------------** ## **PETITIONER/ACCUSED :** **-------------------------------------** **SAJ S/O. SALIM, MUBARAK MANZIL, THEMBAKKADU, PULLAMBARA VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.G.RANJU MOHAN SMT.M.SANTHI** ## **RESPONDENTS/COMPLAINANT :** **------------------------------------------------** |**1.**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682 001.**| |**2.**|**SELVARAJ**| ||**S/O. BALAKRISHNAN,**| ||**'THEDIYAVILA MELE PUTHEN VEEDU, VAZHOTTUKONAM,**| ||**VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM-695 001.**| ||**R1 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN**| ||**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION**| ||**ON 14-07-2016, THE COURT ON THE SAME DAY PASSED THE**| ||**FOLLOWING:**| **Mn** **...2/-** ## **Crl.MC.No. 583 of 2016 () ------------------------------------** ## **APPENDIX** |**PETITIONER(S)' ANNEXURES :**| |---| |**---------------------------------------------**| |**ANNEXURE A -**<br>**CERTIFIED COPY OF THE FIR NO. 843/2011 OF**| |**VENJARAMOODU POLICE STATION, THIRUVANANTHAPURAM**| |**DATED 13-8-2011.**| |**ANNEXURE B -**<br>**CERTIFIED CPY OF THE FINAL REPORT DT. 15.12.2015 FILED**| |**BEFORE JFMC-1, NEDUMANGAD.**| |**RESPONDENT(S)' ANNEXURES : NIL**| |**---------------------------------------------------------**| **//TRUE COPY//** **`` P.S. TO JUDGE** **Mn** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ **Crl.M.C.No.583 of 2016** -----------------------------------------Dated this the 14[th] day of July, 2016 ## **O R D E R ~~~~~~~~** 1.The petitioner is the 2[nd] accused in C.C.No.1874 of 2015 of the Judicial Magistrate of First Class-I, Nedumangad. The father of the petitioner, is the 1[st] accused. They are proceeded against for having committed offence punishable under Sections 420 and 406 read with Section 34 of the IPC. In this petition filed under Section 482 of the Code of Criminal procedure, the petitioner seeks to quash all further proceedings in the aforesaid case. - 2.The gist of the prosecution allegation is that the accused had received a sum of Rs.50,000/- from the _de facto_ complainant by assuring him that his son would be provided with an overseas VISA for employment at Dubai. Crl.M.C.No.583/2016 **-2-** CW2 was taken to Dubai on 29.4.2010 and his passport and other certificates were taken from him. It is alleged that the assured job was not provided to CW1 and thus the accused had committed the offence. - 3.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. Though notice was issued to the _de facto_ complainant he has not entered appearance. - 4.It is urged by the learned counsel that as against the petitioner, the offence will not be attracted. It is the admitted case of the prosecution that the petitioner herein is a friend of CW2, the son of the de facto complainant. The money was handed over to the 1[st] accused and the assurance was also provided by the 1[st] accused. The learned counsel also submits that due to the inability of the victim to secure a job abroad, it cannot be said that Crl.M.C.No.583/2016 **-3-** the petitioner herein is guilty of the offence under Section 420 and 406 of the IPC. Highlighting the fact that the victim had stayed with the petitioner and his father for not less than five months and also the fact that the brother of the victim was also working abroad, it is submitted that the intention behind initiation of prosecution is to harass the petitioner. Finally, it is submitted by the learned counsel that a meticulous evaluation of the allegations in the final report and the materials accompanying the same would only reveal that it was with the 1[st] accused that the _de facto_ complainant had money transaction, and in so far as the petitioner is concerned, who is the son of the 1[st] accused, no offence will be attracted. 5.The learned counsel also relied on the judgment of the Apex Court in **Rajib Ranjan and Others v. R.Vijaykumar** [2015(1) SCC 513], **Wilson M.K. v. State** Crl.M.C.No.583/2016 **-4-** **of Kerala and Another** [2014(3) KLT SN 19] and **Binod Kumar and Others v. State of Bihar and Another** [2014 (10) SCC 663] to buttress his submissions. 6.I have bestowed my anxious attention to Annexure-A2, the final report. It is revealed that CW1 was a close friend of the petitioner herein. The 1[st] accused was working abroad and when he came on leave, he was approached by the _de facto_ complainant and his son for securing an employment abroad. The victim as well as his family members met the 1[st] accused and the allegation is that the 1[st] accused assured that he would be provided with a job as a computer operator drawing a salary of Rs.50,000/- per mensem. Based on the said assurance, CW2 along with his brother went to the house of the 1[st] accused and handed over a sum of Rs.50,000/- to him. Thereafter, the 1[st] accused returned to the Gulf after Crl.M.C.No.583/2016 **-5-** assuring the _de facto_ complainant that he would send a VISA. About six months after handing over the said sum of Rs.50,000/-, a VISA was sent from abroad and on its strength, CW1 boarded a flight to Dubai from Thiruvananthapuram on 29.4.2010. He resided with the petitioner for a month and thereafter resided in the office of the 1[st] accused for four months. It is the admitted case of the prosecution that CW1 was provided with food. When no employment was provided as assured, he got in touch with his brother who was also working in Dubai. The 1[st] accused in the mean time had returned to India on leave. Later, the victim had to secure assistance from the Indian embassy in Dubai to return back to India. - 7.Question is whether the the averments in the final report make out a case to constitute an offence of cheating. 8.The essential ingredients to attract Section 420 IPC are: Crl.M.C.No.583/2016 **-6-** (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. In order to bring a case for the offence of cheating, 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. - 9.Distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that Crl.M.C.No.583/2016 **-7-** the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a Civil Court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. ## 10.In **S. W. Palanitkar and Others v. State of Bihar and** **Another** [2002 (1) SCC 241], the Apex Court had held as under: Crl.M.C.No.583/2016 **-8-** "21 ……In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating." This view was reiterated in **Rashmi Jain v. State of** **Uttar Pradesh and Another** [2014 KHC 5198 : 2014 (13) SCC 553]. 11.In order to attract an offence under Section 406 IPC, there must be an allegation in the complaint that there was breach of trust committed as defined in Section 405 IPC. Nowhere in the complaint it is pleaded that there was an entrustment of property by the complainant to the petitioner herein and the petitioner has converted the property for his own use. None of the ingredients to attract the offence under Sectio 406 IPC has been made Crl.M.C.No.583/2016 **-9-** out as against the petitioner herein. 12.In the instant case, it is the admitted case of the parties that the _de facto_ complainant had gone abroad and he had stayed with the 1[st] accused abroad for a period of five months. Later, for some reasons, the employment promised was not secured by the son of the _de facto_ complainant and he had to return back. It does not appear to me after perusing the prosecution records that as against the petitioner herein the ingredients of the offence is made out. The money was handed over to the 1[st] accused and the assurance was also made by him. The petitioner is a close friend of the son of the _de facto_ complainant and even if the prosecution allegations are admitted as true the ingredients of the offence under Sections 406 and 420 of the IPC is not made out against the petitioner herein. Crl.M.C.No.583/2016 **-10-** ## 13.In **Madhavrao Jiwajirao Scindia and Others v. Sambhajirao Chandrojirao Angre and Others** [1988 (1) SCC 692], a three - Judge Bench of this 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 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." Crl.M.C.No.583/2016 **-11-** 14.Having regard to the above facts, I find force in the submission of the learned counsel that the offence under Section 406 or 420 IPC is not made out against the petitioner herein. The pendency of the criminal proceedings is nothing but an abuse of the process of the Court and the power under Section 482 of the Cr.P.C. can be exercised in order to quash the proceedings. In the result, this petition is allowed and all further proceedings in C.C.No.1874 of 2015 of the Judicial Magistrate of First Class-I, Nedumangad shall stand quashed. Sd/- **RAJA VIJAYARAGHAVAN, V. JUDGE** ps/14/7/16