T. Haridas and B. Rajagopal v. State of Kerala and Arun Shankar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **WEDNESDAY, THE 22ND DAY OF JANUARY 2014/2ND MAGHA, 1935** ## **Crl.MC.No. 957 of 2011** ## **--------------------------------** ## **AGAINST THE ORDER IN CC 196/2010 of CHIEF JUDICIAL MAGISTRATE, THRISSUR CRIME NO.349/2008 OF THRISSUR TOWN POLICE STATION** **----------------** ## **PETITIONER(S)/ACCUSED:** **---------------------------------------** **1. T.HARIDAS, S/O. SANKARA NAMBIAR, AGED 70 YEARS, 17/616 (17), AMRITHA, NEW CIVIL NAGAR, PALAKKAD-01.** **2. B.RAJAGOPAL, S/O. BALAN, AGED 54 YEARS, GARDEN GATE BUILDING, NR. FIRE STATION, GANDHINAGAR, KADAVANTHRA, ERNAKULAM.** **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, THRISSUR TOWN EAST POLICE STATION.** **2. ARUN SHANKAR, S/O. SANKARAN NAIR, AGED 33 YEARS, SREESHYLYAM VIVOKADAYAM, SCHOOL LINE, THRISSUR.** **R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH R2 BY ADV. SRI.C.A.ANOOP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 957 of 2011** ## **--------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** **-----------------------------------------** - **A1: A TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 11/10/2006** - **A2: A TRUE COPY OF CMP.NO.3047/2008 FILED BY THE 2ND RESPONDENT.** - **A3: A TRUE COPY OF THE CMP.NO.8440/2008 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, THRISSUR.** - **A4: A TRUE COPY OF THE ORDER DATED 28/6/2010 IN CMP.NO.8440/2008 OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, THRISSUR.** - **A5: A TRUE COPY OF THE FINAL REPORT IN CC.NO.196/2010 OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE.** ## **RESPONDENTS' ANNEXURE** **-----------------------------------------** **NIL.** ## **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **A.HARIPRASAD, J.** ## **-----------------------------------------------Crl.M.C.No.957 of 2011** ## **-----------------------------------------------Dated this the 22[nd] day of January, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioners are the accused in C.C No.196/2010 on the file of Chief Judicial Magistrate Court, Thrissur. The petitioners are called up to answer a charge under Section 420 I.P.C. 2. Facts in brief are as follows : Defacto complainant's uncle, who was running an Audio Visual Consultancy at Mumbai, requested for the help of petitioners to get financial assistance and to arrange a loan from foreign bank to set up an audio visual consultancy company. Annexure A1 is the memorandum of understanding executed between the first petitioner and the uncle of the defacto complainant. Annexure A2 is the complaint filed by the complainant/second respondent before the court alleging the said offences. The complaint was forwarded under Section 156(3) Cr.P.C to the investigating officer. After completing investigation, the officer filed a negative report finding that it was purely a civil dispute. ## **Crl.M.C.No.957 of 2011 2** Thereafter, the complainant filed Annexure A3 complaint. It appears that the complaint is in the nature of a protest complaint. Annexure A4 is the order passed by the learned Magistrate, directing the Station House Officer of the concerned police station to 'reinvestigate the case'. Thereafter the police conducted an investigation and filed Annexure A5 charge sheet. 3. Heard the learned counsel for the petitioners and the learned counsel for the second respondent/complainant. 4. Learned counsel for the petitioners raised the following contentions. Firstly, this is a civil dispute between the parties and no criminal action can be launched on the basis of an alleged breach of Annexure A1 memorandum of understanding. Secondly, it was contended that the complainant has no locus to file a complaint as there was no privity of contract between the first petitioner and the complainant. Various paragraphs in Annexures A2 and A3 show the specific allegations against the petitioners. It is the contention of the learned counsel for the complainant that the accused nurtured an ## **Crl.M.C.No.957 of 2011 3** intention at the inception of the transaction to commit an offence of cheating. The allegations in the complaint _prima facie_ show that it cannot be simply set aside finding that it is purely a civil dispute. However, it is for the complainant to establish at the time of framing charge that the allegations do not constitute the offence alleged against the petitioners. 5. Learned counsel for the petitioners relied on decisions of the Supreme Court namely _**Dalip Kaur and Others v. Jagnar Singh and Another (2009(3) K.H.C 554)**_ and _**V.P.Shrivastava v. Indian Explosives Ltd. and Others (2010 K.H.C 4708)**_ to contend the proposition that it is well settled that in order to constitute an offence of cheating, it must be shown that the accused had a fraudulent or dishonest intention at the time of making the representation or promise and such culpable intention existed right at the time of entering into an agreement and cannot be presumed merely from his failure to keep the promise subsequently. It is argued on behalf of the petitioners that they were responsible for preparing a project ## **Crl.M.C.No.957 of 2011 4** report to the satisfaction of the foreign funding agency and they have discharged their duty as per Annexure A1 to the best of their ability. It is also contended that funding could not be arranged not on the insufficiency or inaccuracy of the project report, but funding was not provided by the agencies outside India because the complainant’s uncle failed to deposit money in the named account to show his credential. All these aspects are vexed questions of facts. However, I make it clear that the learned Magistrate is free to consider the case of the petitioners at the time of framing charge and is legally bound to find out whether an offence of cheating is made out from the totality of averments in the complaint. 6. Learned counsel for the complainant submitted that Annexure A4 order passed by the learned Magistrate has not been challenged appropriately. Learned counsel for the petitioners would submit that it has been specifically challenged in ground E to this petition. It is true that Annexure A4 order is not separately challenged. But a court considering the legality of the proceedings ## **Crl.M.C.No.957 of 2011 5** under Section 482 Cr.P.C is competent to consider the challenge against orders leading to the final order. Therefore, I find that challenge in ground E to this petition against Annexure A4 order is legally sufficient. It is seen from ground E that the petitioners challenge the power of the Magistrate to issue re-investigation in to the matter. It is true that the law settled on the point is that the Magistrate is not legally competent to direct re-investigation in to a crime. Learned counsel would rely on a decision reported on _**Reeta Nag v. State of West Bengal and Others**_ ( _**2009(9) S.C.C 129)**_ to canvas this proposition. This proposition is indubitable. The Magistrate could have only passed an order for further investigation in the matter. However, it appears that the Station House Officer has correctly understood the scope of the order and filed Annexure A5 final report. 7. Learned counsel for the petitioners submitted that they may be exempted from personal appearance before the trial court. In answer to this argument, learned counsel for the complainant **Crl.M.C.No.957 of 2011 6** submitted that they have never appeared before the trial court and warrants issued were stayed as per the order of this court on 31-03-2011. Considering the nature of the proceedings, it is directed that the petitioners shall appear before the trial court and move for bail. In that event, the learned Magistrate shall consider the application on the date of its filing. Petitioners, after securing bail, can seek exemption from personal appearance, as the first petitioner is old and they are staying far away from the court. In that event, the learned Magistrate shall legally consider whether he should insist on their personal appearance at the time of hearing on charge. With the above direction, this Crl.M.C is disposed of. All pending interlocutory applications will stand dismissed. **Sd/A.HARIPRASAD, JUDGE.** //True Copy// P.A to Judge amk