Sophy Mathew and Raghavan v. State of Kerala and K.V. BALAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931** ## **Crl.MC.No. 91 of 2009()** **------------------------------------** **CC.309/2008 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE** **....................** ## **PETITIONER(S):** **-----------------------** **1. SOPHY MATHEW, W/O.CHERIAN THOMAS, AGED 48, FORMERLY ASSISTANT GENERAL MANAGER REP. BY STATE BANK OF INDIA COMMERCIAL BRANCH, KALOOR, ERNAKULAM, KOCHI 682 017 AT PRESENT REGIONAL MANAGER, STATE BANK OF INDIA R.R.O., KOZHIKODE RESIDING AT BANK HOUSE, STATE BANK OF INDIA MAIN BRANCH, MANANCHIRA P.O., KOZHIKODE.** **2. RAGHAVAN, DEPUTY MANAGER REP. BY THE STATE BANK OF INDIA COMMERCIAL BRANCH, KALOOR, ERNAKULAM KOCHI-17.** **BY ADVS. MR.K.JAYAKUMAR MR.P.B.KRISHNAN** ## **RESPONDENT(S):** - **-------------------------** **1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. K.V.BALAN, AGED 63, S/O.KUNHAMBU MASTER, MANAGING PARTNER, SMART SECURITY AND SECURITY SERVICE AGENCY, MANIYATTUKUDY, ASFA BUILDING MAVOOR ROAD, KOZHIKODE-4, NADAKKAVU POLICE LIMIT.** **BY PUBLIC PROSECUTOR MR.AMJAD ALI BY ADV.MR.T.K.VIPINDAS FOR R2 MR.K.V.SREE VINAYAKAN FOR R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **M.N. KRISHNAN, J** ## **-----------------------** ## **CRL.M.C.No. 91 OF 2009** ## **---------------------------------** Dated this the 26[th] day of March, 2009 ## **O R D E R** This petition is preferred with a prayer to quash Annexure A complaint exercising the power under Section 482 of the Crl.P.C. The defacto complainant has filed Annexure A complaint before the Judicial First Class Magistrate Court-IV, Kozhikode against the accused invoking Sections 415, 418 and 420 r/w Section 34 of the IPC. 2. The defacto complainant is a retired police official. The accused are the officers of the State Bank of India. It has to be stated that for the purpose of realisation of the amount due under a transaction from one Anil Kumar, the Bank entered into an agreement with the present defacto complainant. The said agreement is dated on 22.12.2005. As per the terms of the said agreement which is in the form of a letter the remuneration for the work done by the defacto complainant is fixed at 5% of the amount that is collected through him. It is also specifically stated that if the amount is realised not through him he is not entitled to any remuneration. Thereafter the debtor namely Anil Kumar Crl.M.C. 91/2009 -2- deposited the entire amount due to the Bank in the 1[st] and 2[nd] week of January and thereby cleared the debts due from him. Since the Bank did not pay the amount as the amount collected by the defacto complainant, a notice was issued and ultimately the Bank took the stand that the realisation of the amount was not through the defacto complainant but made voluntarily by Anil Kumar and therefore he is not entitled to any remuneration. But for having entrusted the work they have sent him an amount of Rs. 10,000/- as the remuneration. Dissatisfied with the attitude of the Bank, the defacto complainant filed a suit before the Additional Munsiff Court-I, Kozhikode as O.S. 503/2006. The said court by its judgment dated 29.6.2007 had granted a decree in favour of the present defacto complainant for a sum of Rs. 72,050/-. It is found in that decision that it was only on account of the efforts or persuasion made by the defacto complainant, the amount has been collected. I am informed that an appeal is pending before the appellate court for consideration. The present complaint is filed on 19.7.2006. The said complaint states about the various discussions and also the intention that Crl.M.C. 91/2009 -3- had taken effect especially the agreement and in para 9 it is stated that: “it is quite apparent that the defendants together had, with common object and intention colluded together to cheat the complainant and see that the amount to be paid to the complainant has to be diverted as a wrongful gain of them. It is learned that the person Manoj is a close relative of the 2[nd] accused Raghavan, which, by itself appeal collusive work of them to make wrongful gain by cheating the complainant.” Whether these avernments are sufficient to constitute an offence under Section 420 or 418 as the case may be, and whether these avernments can stand as such in the light of the admitted documents before the court are the matters that has to be taken into consideration. Section 420 of the IPC deals with the offence of cheating and Section 415 is the definition section. Section 415 of the IPC defines cheating: “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent Crl.M.C. 91/2009 -4- 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'.” The necessary ingredients thus required for the purpose of cheating are stated as in the definition. 3. Now I may refer to the decisions cited at the bar by the learned counsel for the petitioner. The learned counsel had relied upon the decision of the Supreme Court in _**Vijaya Rao v. State of Rajasthan and another [2005 (7) SCC 69]**_ . It was a case where the court held that when ingredients of offence in question conspicuously lacking in the complaint the court is empowered to quash the proceedings under Section 482 of the Crl.P.C. Similarly in the decision reported in _**Vir Prakash Sharma v. Anil Kumar Agarwal and another [2007 (7) SCC 373]**_ also the court had held that it is necessary to have a pleading as to the act of inducement on the part of the accused and intention to Crl.M.C. 91/2009 -5- cheat the complainant from the very inception. The same view has been taken by the Supreme Court in the decision reported in _**The State of Kerala v. Pareed Pillai and another [AIR 1973**_ _**SC 326].**_ The apex court held that in order to hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. It has also been held by the court that when there is an agreement entered into between the parties and there is a breach of promise it is to be fulfilled under the terms of the agreement, mere breach of promise would not result in attracting the offence of cheating under Section 420 of the Indian Penal Code. So with these principles, when the matter is analysed it can be seen that the leading Bank of India namely the State Bank of India had entered into an agreement with a private person as an agent for the purpose of helping the Bank to realise the amount and for that purpose entered into an agreement whereby the terms of remuneration was fixed and it was made clear that if the recovery Crl.M.C. 91/2009 -6- is not through or on account of the persuasion or act of the said agent he is not entitled to any amount. When admittedly in this case the amount was paid after the appointment of agent and it ended in a Civil litigation which had gone in favour of the defacto complainant. So the facts of the matter, so far as this case is concerned is whether the amount was received from Anil Kumar through the defacto complainant or through the conduct of Anil Kumar or persuasion of somebody else. It was a point of dispute which resulted in all these litigations and it cannot be said that at the time of entering into an agreement that there was any dishonest intention for the Bank or employees of the Bank to cheat somebody. Because the very object of entering was to realise the amount outstanding from a third person and the aid of the present defacto complainant was taken into service. 4. Therefore I find that the necessary ingredients to constitute the offence are absolutely lacking and even in the private complaint itself there is no even one single avernment regarding dishonest intention said to have been in the mind of the people at the time of entering into the agreement. When it is Crl.M.C. 91/2009 -7- so, the criminal prosecution against the present petitioners cannot lie and therefore it is liable to be quashed. Therefore invoking the power under Section 482 of the Crl.P.C, I quash all further proceedings in C.C. 309/08 pending before the Judicial First Class Magistrate Court-IV, Kozhikode. The Crl.M.C is disposed of. **M.N. KRISHNAN, JUDGE** vkm