Vijayan, Sulekha and Jayakumar Sumith v. The State of Kerala and S. Nagamani

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 4[TH] DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945 ``` ``` CRL.MC NO. 362 OF 2015 ``` ``` CC 428/2011 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,THIRUVANANTHAPURAM ``` ## **`PETITIONERS/ACCUSED :`** ``` 1VIJAYAN AGED 67 YEARS, S/O.KUNJIKRISHNAN, T.C.3/2728, MEDUMBIL HOUSE, NEARBY PUTHEN PALAM, KANNAMMOOLA, PATTOM WARD, PATTOM VILLAGE. 2SULEKHA AGED 60 YEARS, W/O.VIJAYAN, T.C.3/2728, MEDUMBIL HOUSE, NEARBY PUTHEN PALAM, KANNAMMOOLA, PATTOM WARD, PATTOM VILLAGE. 3JAYAKUMAR SUMITH AGED 27 YEARS, S/O.VIJAYAN, T.C.3/2728, MEDUMBIL HOUSE, NEARBY PUTHEN PALAM, KANNAMMOOLA, PATTOM WARD, PATTOM VILLAGE. BY ADV SRI.R.T.PRADEEP ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2S.NAGAMANI AGED 52 YEARS D/O.SWARNAMMA, CHOTHIYIL, MUNDAILKONAM, MUTTADA P.O., THIRUVANANTHAPURAM. BY ADV SMT.R.BINDU VIPIN NARAYANAN.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.362 /2015 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C.No.362 of 2015** ## **---------------------------------------------Dated this the 04[th] day of September, 2023** ## **ORDER** Petitioners are the accused in C.C.No.428/2011 of Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The above case is charge-sheeted against the petitioners alleging offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code. 2. The prosecution case in brief are as follows: The accused and defacto complainant are relatives. The 1[st] accused is running a provisional store and the accused had the knowledge that defacto complainant was keeping Rs.12,00,000/- which is the consideration she obtained by selling her family property for the purpose of education and marriage of her daughter. It is the case of the petitioners that the accused with the common intention to cheat the defacto complainant whereby causing pecuniary loss to her and to Crl.M.C.No.362 /2015 **3** derive pecuniary advantage for themselves had come to the house of the defacto complainant on 10.4.2008 and impressed upon her that the said amount on deposit with Bank would incur a loss whereas the said amount on being given by way of loan for the business of the 1[st] accused would earn a monthly interest of Rs.2,000/- per lakh and also entitled for share of profit in the business run and the principal amount shall be returned within six months. It is the further case of the petitioners that the accused has taken an amount of Rs.8,50,000/- from the defacto complainant on such inducement to deceive her. The loan amount was utilized by the accused to meet their own needs. It is also the case of the petitioners that the accused did not pay neither interest nor principal amount and thereby committed cheating and criminal misappropriation. Annexure I is the final report. It is the further case of the petitioners that the defacto complainant filed OS.No.1042/2011 before Sub Court, Thiruvananthapuram against the 1[st] accused seeking realization of money to a tune of Rs.8,50,000/- due and payable on a cheque dated 15.6.2011 drawn at Canara Bank. Crl.M.C.No.362 /2015 **4** The case set up by the defacto complainant in the suit is against the prosecution case is the submission. Annexure II is the plaint in the suit. Annexure III is the written statement filed in the suit. Annexure IV is the order passed by the Sessions Judge, Thiruvananthapuram in a petition filed under Section 438 of the Criminal Procedure Code for anticipatory bail. The case of the petitioners is that no offence under Section 420 and 406 of the Indian Penal Code (for short, IPC) are made out even if the entire allegations Annexure I final report is accepted in toto. 3. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 4. To attract an offence under Section 420 IPC, certain basic ingredients are necessary. The Apex Court in **Peethambaran v. State of Kerala [2023 (3) KLT 493]** considered the ingredients of Section 420 IPC in detail. It will be better to extract the relevant portion of the above judgment: “24. The offence alleged in the FIR is Section 420 IPC which is a serious form of cheating include inducement in terms of delivery of property and/or valuable Crl.M.C.No.362 /2015 **5** securities. The ingredients that must be met in order to constitute an offence under the section have been noted by this Court in Vijay Kumar Ghai and Ors. v. State of West Bengal and Ors.13 by a bench of two judges (consisting one of us, Krishna Murari, J.): “35.To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved: - (i) The representation made by the person was false. - (ii) The accused had prior knowledge that the representation he made was false. - (iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made. - (iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed. 36. As observed and held by this Court in R.K. Vijayasarathy v. Sudha Seetharam [R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri) 454] , the ingredients to constitute an offence under Section 420 are as follows: - (i) a person must commit the offence of cheating under Section 415; and - (ii) the person cheated must be dishonestly induced to: - (a) deliver property to any person; or - (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act Crl.M.C.No.362 /2015 **6** to constitute an offence under Section 420IPC.” 5. Similarly in **Deepak Gaba v. State of Uttar Pradesh [2023 (1) KLJ 795]** the Apex Court again considered the evidence necessary to attract the offence under Section 420 IPC. It will be beneficial to extract the relevant portion of that judgment: “16. In order to apply S.420 of the IPC, namely cheating and dishonestly inducing delivery of property, the ingredients of S.415 of the IPC have to be satisfied. To constitute an offence of cheating under S.415 of the 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 class 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. Thus, the sine qua non of S.415 of the IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements would debase the offence of cheating (Iridium India Telecom Limited v. Motorola Incorporated and Others, AIR 2011 SC 20.). Explaining the contours, this Court in Mohd. Ibrahim and Another v. State of Bihar and Others (2009 (8) SCC 751. This Court, in this case, has cautioned that the ratio should Crl.M.C.No.362 /2015 **7** not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to respondent no. 2 - complainant. We respectfully concur with the clarification as well as the ratio explaining S.415, S.464 etc. of the IPC.), observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security. 6. Keeping in mind the above principle, this Court perused Annexure I final report. In Annexure I final report it is stated that the accused borrowed money with an assurance that the amount will be repaid with interest. The grievance of the defacto complainant is that the amount is not paid. I am of the considered opinion that the above averments will not attract the offence under Sections 406 and 420 IPC. The continuation of proceedings against the petitioners will be an abuse of process of the Court. Even if the entire allegation in Annexure-I final report is accepted, there is no chance for conviction. In such circumstances, I think the continuation of Crl.M.C.No.362 /2015 **8** proceedings will be an abuse of process of the Court. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings in C.C.No.428/2011 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, arising from Crime No.956/2010 of Medical College Police Station, are quashed. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.362 /2015 **9** ## **`APPENDIX OF CRL.MC 362/2015`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE I : TRUE COPY OF FINAL REPORT DATED 30-10-2010 IN CRIME NO.956/2010 OF MEDICAL COLLEGE POLICE STATION ON THE FILE OF JFMC-II, THIRUVANANTHAPURAM. ``` ``` ANNEXURE II : TRUE COPY OF PLAINT DATED 17-08-2011 IN OS NO.1042/2011 BEFORE SUB COURT, THIRUVANANTHAPURAM. ANNEXURE III : TRUE COPY OF WRITTEN STATEMENT NIL DATED WHICH IS FILED BY DEFENDANT IN OS NO.1042/2011 BEFORE SUB COURT, THIRUVANANTHAPURAM. ANNEXURE IV : TRUE COPY OF ORDER DATED 14-10-2010 IN CRL.M.C.NO.1332/2010. ```