Vibindas v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940 ## Crl.MC.No. 5886 of 2015 CRIME NO. 408/2015 OF VELLIKULANGARA POLICE STATION , THRISSUR ## PETITIONER/1st ACCUSED: VIBINDAS, S/O.VENUMADHAVAN AGED 34 YEARS S/O.VENUMADHAVAN, UDAMAKANGOTTU HOUSE, KANIMANGALAM VILLAGE, THRISSUR TALUK, 680 027. BY ADVS. SRI.PAUL K.VARGHESE SMT.A.A.GEETHA ## RESPONDENTS/DE FACTO COMPLAINANT: - 1 STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. - 2 THANKAMANI, AGED 48 YEARS, W/O.PRABHAKARAN,KALATHIPARAMBIL HOUSE, VELLIKULANGARA VILLAGE, COPIPADAM, THRISSUR 680 027. SMT. M.N. MAYA, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. No. 5886 of 2015 -2- ## **ORDER** The petitioner is the first accused in Crime No. 408 of 2015 of Vellikulangara Police Station for offences punishable under Sections 406, 420, 506(i) and 34 of IPC. 2. The case of the prosecution is as follows: The de facto complainant borrowed a sum of Rs.8,00,000/- from the petitioner on the security of the property and executed Annexure I document with an arrangement that the petitioner will execute reconveyance deed when money is repaid. When the second respondent, the defacto complainant, demanded back the property, both accused threatened the de facto complainant, and the petitioner by pledging the document in ITC Bank, Kodali, created a liability of Rs.26,34,087/- to her and thereby committed the aforesaid offences. 3. The learned counsel for the petitioner contended that in the year 2012, the de facto complainant sold her property through Sale Deed No. 2594/12 of Kodali SRO to the petitioner and by using the sale proceeds, the de facto complainant discharged her liability with Syndicate Bank, Kodali and also developed her Textile Business. In the sale deed, the second accused is a witness. He has also contended that there is no promise or breach of promise on the side of the petitioner and the said sale deed is a pucca sale deed complying all the formalities as per law. Later, in the year 2013, the petitioner sold the property to Crl.M.C. No. 5886 of 2015 -3- one Mrs. Soumya for a valuable consideration by way of sale deed No.2613/13 of Kodali SRO. He has further contended that during the period from 2012 to 2015, there was no complaint on the side of the de facto complainant against the petitioner. On 26.06.2015, after a long delay of 2 years, the de facto complainant filed a complaint before the police. The second accused was only a witness in Annexure II sale deed. In fact, there is no element of cheating or breach of trust in the present case. According to the petitioner, the alleged dispute is purely of civil nature and the police have no role to play. With the aforesaid contentions, the petitioner seeks to quash Annexure I FIR. 4. As per the complaint, about 18.5 cents belongs to the de facto complainant was mortgaged with the petitioner about two years back for Rs.8,00,000/-. Due to the intervention of the second accused, when he asked to give back the document, it was learnt that he had given the property to one Soumya, the wife of Biju, Kolathiparambil and it has been pledged at ITC Bank, Kodali for Rs.26,34,087/-. According to her, the FIR was lodged against the petitioner and the second accused therein. Annexure II is the sale deed alleged to have been executed by the de facto complainant in favour of the petitioner on 10.08.2012 and it would prove that the de facto complainant has executed a pucca sale deed in favour of the petitioner and transferred the possession of the same for a sale consideration of Rs.2,00,000/-. Annexure III is the prior Crl.M.C. No. 5886 of 2015 -4- title deed of the de facto complainant dated 12.04.2004. 5. According to the petitioner, Annexures II and III documents would be sufficient enough to establish that the property obtained by the de facto complainant as per Annexure III was executed as per Annexure II sale deed in favour of the petitioner in the year 2012. The case of the de facto complainant is that she has mortgaged the property with the petitioner in the year 2012 for Rs.8,00,000/-with the petitioner. When she demanded back the same, it was learnt that the petitioner has subsequently sold the property to one Soumya and it was subsequently pledged with ITC Bank, Kodaly Branch. 6. Now, FIR was registered against the petitioner on the basis of the complaint of the _de facto_ complainant that title deed of 18.5 cents of property was mortgaged with the petitioner about 2 years back and when she demanded back the sale deed, the petitioner has threatened her and it was learnt that the petitioner has sold the property to one Soumya, Wife of Shiju, Kolathiparambil and the said property has been pledged at ITC Bank, Kodali for Rs.26,34,087/-. Accordingly, FIR was registered against the _de facto_ complainant under Sections 420, 506 (i) r/w Section 34 IPC. 7. The definite case of the _de facto_ complainant that she has handed over the sale deed of her property as stated above for the purpose of mortgaging it after receipt of Rs.8,00,000/-. So, she has Crl.M.C. No. 5886 of 2015 -5- alleged that the petitioner has cheated her by selling the property again to one Soumya. 8. The issue to be considered is whether the ingredients as stated in the FIR is sufficient enough to attract Section 420 IPC. It is held in _**Ajith Gopal Nambiar v. Jacob Raju [2016 (4) KLT 192]**_ that 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. The distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the 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 is that a representation made by the accused was 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. This fact has been reiterated in a ruling held in _International Advanced Research Centre for Powder Metallurgy_ and _New Materials (ARCI) and Others v. NIMRA Cerglass Technics Pvt. Ltd. and another_ _**[2016 (1) SCC 348]**_ . 9. Here, there is no promise on the part of the petitioner to re- Crl.M.C. No. 5886 of 2015 -6- convey the property to the _de facto_ complainant. As evidenced from Annexure-A2, it is clear that the property has been sold in the name of the _de facto_ complainant in the year 2012 by giving possession of the same to him and as per the allegation of the _de facto_ complainant, she has accepted Rs.8,00,000/- for the same and handed over the property to the petitioner. The document would prove that it is a pucca sale deed and not a mortgage deed. Now after two years, the de facto complainant filed a complaint before the police stating that she had only executed a mortgage deed in favour of the petitioner, and not a sale deed. Even now the _de facto_ complainant has not taken any steps or any legal action against the petitioner, except the registration of Annexure-1 FIR. Even otherwise, Annexures A1 and A2 would reveal that the _de facto_ complainant has accepted Rs.2,00,000/- by way of sale consideration. 10. So, from the arguments advanced by the learned counsel for the petitioner as well as the other side and on evaluation of the documents produced before me, I have no hesitation to hold that the case advanced by the _de facto_ complainant that the petitioner had an intention to deceive the _de facto_ complainant at the time of execution of Annexure-A2 document is not correct. The offences alleged to have committed by the petitioner is under Sections 406, 420 and 506(i) r/w. Section 34 of the IPC and the element of cheating under the breach of Crl.M.C. No. 5886 of 2015 -7- conduct would not arise in the light of production of Annexure-A1 document before this Court. In fact, the alleged dispute is purely of civil nature and the police have no role to play. There is no materials brought by the prosecution to attract the aforesaid offences. Therefore, I find it is just and proper to exercise the power under Section 482 Cr.P.C. Accordingly,this Crl.M.C.is allowed and the Annexure-I FIR against the petitioner is hereby quashed. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl.M.C. No. 5886 of 2015 -8- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ANNEXURE-I A TRUE COPY OF THE FIR IN CRIME NO. 408/15 OF VELLIKULANGARA POLICE STATION REGISTERED UNDER SECTION 406, 420,506(1) AND 34 OF IPC DATED 26/5/2015 ANNEXURE-II A TRUE COPY OF THE SALE DEED NO. 2594/2012 EXECUTED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONER DATED 10/8/2012 ANNEXURE-III A TRUE COPY OF THE PRIOR TITLE DEED NO. 1281/2004 OF KODALI SRO DATED 12/4/2004 ## **RESPONDENTS' EXHIBITS: NIL** /True Copy/ PS to Judge. rv