Sreelakha and Gopi Kurup v. State of Kerala and Beena

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946** **CRL.MC NO. 7819 OF 2016** **CRIME NO.523/2015 OF KURATHIKADU POLICE STATION, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT DATED IN CC NO.749 OF 2015 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS -I, MAVELIKKARA** ## **- PETITIONERS/ACCUSED 1 2:** - **1 SREELAKHA AGED 38 YEARS, W/O.BALAKRISHNA KURUP, KIZHAKKETHUNDIYIL HOUSE, ARUNOOTHIMANGALAM, THAZHAKKARA VILLAGE, ALAPPUZHA DISTRICT** - **2 GOPI KURUP AGED 74 YEARS, KIZHAKKETHUNDIYIL HOUSE, ARUNOOTHIMANGALAM, THAZHAKKARA VILLAGE, ALAPPUZHA DISTRICT** **BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)** ## **RESPONDENTS/ STATE AND DEFACTO COMPLAINANT/ INJURED:** - **1 STATE OF KERALA SUB INSPECTOR OF POLICE KURATHICADU, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** - **2 BEENA** **W/O.SREEKUMAR, SREE SAILAM, KALLUMALA, UBARNATTUKARA, THEKKEKKARA VILLAGE, MEVELIKKARA, ALAPUZHA DISTRICT, PIN 690107** **BY ADVS. SMT.NIMA JACOB, PP SRI.S.SHANAVAS KHAN - R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** - **25.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ``` CRL.MC NO.7819 OF 2016 ``` 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl. M.C. No. 7819 of 2016 ---------------------------------------------Dated this the 25[th] day of July, 2024** ## **O R D E R** This Criminal Miscellaneous Case is filed to quash the proceedings in Annexure-A2 final report which is pending as C.C. 749/2015 on the file of Judicial First Class Magistrate Court-I, Mavelikkara, arising from Crime No.523/2015 of Kurathikadu Police Station. 2. The gist of prosecution case is that, during the period from 24.12.2012 to 3.1.2013, the first and second accused, who are the petitioners in this case received Rs.6,00,000/- from the defacto complainant by three installments and subsequently issued a blank cheque, as security from the account of the first petitioner drawn on the Bank of Baroda, with an overwriting in the signature, and failed to repay the ``` CRL.MC NO.7819 OF 2016 ``` 3 amount, hence the accused persons committed offences. 3. The prosecution is launched on the basis of a private complaint filed by the 2[nd] respondent before the Judicial First Class Magistrate Court, Mavelikkara, which was forwarded to the Station House Officer, Mavelikkara under Section 156(3) Cr.P.C. Annexure-1 is the First Information Report. After investigation, Annexure-2 final report is filed. 4. When this Crl.MC came up for consideration, the counsel for the petitioner submitted that, the 2[nd] petitioner is no more and charge against him is abated. The counsel for the petitioner also submitted that, even if the entire allegations are accepted, no offence is made out against the 1[st] accused who is the 1[st] petitioner herein. The counsel submitted that, continuation of prosecution against the 1[st] petitioner is an abuse of process of court. Hence, it is submitted that the continuation of the ``` CRL.MC NO.7819 OF 2016 ``` 4 prosecution against the 1[st] petitioner may be quashed. The learned Public Prosecutor submitted that, there is _prima facie_ case against the 1[st] petitioner and this Court may not interfere with the prosecution initiated against the 1[st] petitioner and he may be directed to face trial. 5. This Court considered the contentions of the 1[st] petitioner and the learned Public Prosecutor. The offence alleged are under Section 420 r/w 34 IPC. This Court perused Annexure-1 complaint based on which the FIR is registered and also Annexure-2 final report. As per Annexure 1 and 2, the prosecution case is that, the 1[st] and 2[nd] accused received Rs.6,00,000/- from the defacto complainant by three installments and the amount is not returned. The specific case of the defacto complainant in Annexure-1 complaint is that an invalid cheque is given to the defacto complainant. I am of the considered opinion that, even if the entire ``` CRL.MC NO.7819 OF 2016 ``` 5 allegations are accepted in toto, no offence under Section 420 IPC is made out against the 1[st] petitioner. There may be civil liability to the 1[st] petitioner towards the defacto complainant. The ingredients of section 420 IPC is not made out in the facts and circumstances of the case because the only allegation is that some amount is borrowed and the same is not returned. It is only a monitory transaction and the offence under Section 420 IPC is not made out. 6. The Apex Court in _**Prof. R.K. Vijayasarathy and Another v. Sudha Seetharam and Another**_ [2019 (16) SCC 739] observed that, “ _an attempt to cloak a civil dispute with a criminal nature despite absence of ingredients necessary to constitute criminal offence can be interfered under Section 482 Cr.P.C.”_ The Apex Court also considered the ingredients of Section 420 IPC in _**Deepak Daba v. State of Uttar Pradesh**_ (2023 KHC 6000) case and observed that, _to prove an offence of cheating_ ``` CRL.MC NO.7819 OF 2016 ``` **==> picture [8 x 9] intentionally omitted <==** _under Section 415 of IPC, a person should be induced either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second clause of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived._ Therefore, the Apex Court observed that, _the sine qua non of Section 415 of the IPC is fraudulence, dishonesty, or intentional inducement and the absence of these elements would debase the offence of cheating._ Even if the entire allegations are accepted in this case, no ingredients under Section 420 is made out. In _**International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Others v. Nimra Cerglass Technics (P) Ltd. and Another**_ (2015 KHC 4633), the Apex Court observed that, _“mere breach of contract cannot give_ ``` CRL.MC NO.7819 OF 2016 ``` 7 _rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction.”_ The upshot of the above discussion is that, the prosecution against the 1[st] petitioner is to be quashed. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings as against the 1[st] petitioner in C.C. No.749/2015 on the file of Judicial First Class Magistrate Court-I, Mavelikkara, arising from Crime No.523/2015 of Kurathikadu Police Station are quashed. The charge against the 2[nd] petitioner is abated. Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** nvj ``` CRL.MC NO.7819 OF 2016 ``` 8 ## **APPENDIX OF CRL.MC 7819/2016** ## **PETITIONER ANNEXURES** **ANNEXURE I THE CERTIFIED COPY OF FIR NO. 523 OF 2015 KURATHICADU POLICE STATION** **ANNEXURE 2 THE CERTIFIED COPY OF THE FINAL REPORT IN CC.NO. 749/5 JFCM I, MAVELIKKARA** ## **RESPONDENTDS EXHIBITS : NIL** **//TRUE COPY//** **PA TO JUDGE**