Kerala High Court
Gangadharan vs State Of Kerala on 17 June, 2009
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 25TH DAY OF FEBRUARY 2014/6TH PHALGUNA, 1935
Crl.MC.No. 4479 of 2013 ()
---------------------------
CRIME NO. 1444/2013 OF VATAKARA POLICE STATION , KOZHIKODE DISTRICT
--------------------------------------
PETITIONER(S)/ACCUSED 1 & 2:
------------------------------------------------------
1. GANGADHARAN,PUTTARATH HOUSE,
PATHIYARAKKARA POST, VADAKARA,
KOZHIKODE.
2. PRADEEP KUMAR M.T.,
(WRONGLY SHOWN AS PRADEEPAN IN F.I.R.)
"VISHNUPRIYA", POST MUTTUNGAL WEST, CHORODE,
VADAKARA, KOZHIKODE DISTRICT.
BY ADV. SRI.R.K.MURALEEDHARAN
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
----------------------------------------------------------------------------
1. STATE OF KERALA,
THROUGH SUB INSPECTOR OF POLICE, VADAKARA,
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
2. NAYIMA, W/O.NISAR,
PUTHANPURAYKKAL, VILLIYAPPALLY,
VADAKARA, KOZHIKODE DISTRICT, PIN -673 104.
R1 BY PUBLIC PROSECUTOR SMT.LILLY LESLIE
R2 BY ADVS. SRI.K.M.FIROZ
SMT.M.SHAJNA
SRI.S.KANNAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 25-02-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
sts
Crl.MC.No. 4479 of 2013 ()
---------------------------------------
APPENDIX
PETITIONER(S)' ANNEXURES:
----------------------------------------------
ANNEX-I: TRUE COPY OF THE IRDA LICENCE ISSUED TO THE 2ND PETITIONER.
ANNEX-II: TRUE COPY OF THE RELEVANT PAGES OF THE CONDITIONS OF THE
POLICY ISSUED TO THE 2ND RESPONDENT DATED 17.06.2009.
ANNEX-III: TRUE COPY OF THE PROPOSAL FORM SIGNED BY THE 2ND
RESPONDENT.
ANNEX-IV: TRUE COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE
MANAGER, KOTAK INSURANCE CO. DATED 13.7.2013.
ANNEX-V: TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME
NO.1444/2013
ANNEX-VI COPY OF THE RECEIPT DATED 15/06/2009
ANNEX-VI(A) COPY OF THE RECEIPT DATED 20/09/2010
ANNEX-VI(B) COPY OF THE RECEIPT DATED 11/07/2011
RESPONDENT(S)' ANNEXURES: NIL
/TRUE COPY/
P.A.TO.JUDGE
sts
P.BHAVADASAN, J.
------------------------------------------
Crl.M.C. No.4479 OF 2013
-------------------------------------------
Dated this the 25th day of February, 2014.
O R D E R
This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to have Annexure V quashed. Annexure V is a First Information Report registered on the basis of a complaint said to have been filed by the 2nd respondent herein.
2. Lured by the possibility of getting gas cylinder immediately, it is alleged that the petitioners induced the 2nd respondent to join a scheme namely, Kotak Mahindra Old Mutual Life Insurance Scheme. She was given to understand, according to the 2nd respondent, that if she pays Rs.25,000/- for three years continuously, she would get a return of Rs.90,000/- and she would be insured for a sum of Rs.10 lakhs. The allegation is that after the three years period when she went to the office to collect a sum of Rs.90,000/-, she was told that she would get only Rs.48,500/- which shocked her. She then came to know Crl.M.C. No.4479/2013 2 that she has been misled by the petitioners who are acting as agents of the company. She therefore laid the complaint and crime was registered.
3. The petitioners, on the other hand, would say that the 2nd petitioner was an agent of the company already made mention of and he used to canvas clients for the schemes mooted by the company. According to him, he had made the 2nd respondent aware of the scheme giving full details and had never represented as now put forward in the complaint that if she pays Rs.25,000/- for three years continuously, she would get a sum of Rs.90,000/- at the end of the third year. The petitioners point out that Annexure II policy has been served on the 2nd respondent which would clearly show the terms and conditions under which policy has been issued and the benefits which she would get on payment of the amount as specified. According to the petitioners, she could not have been under the misapprehension as is now sought to be put forward. Further, it is pointed out that there is no allegation that the petitioners have misappropriated any of the amounts or that they have diverted Crl.M.C. No.4479/2013 3 the amounts given to them by the 2nd respondent or that they have derived any illegal pecuniary benefits as of now. The petitioners point out that whatever amounts have been given to them by the 2nd respondent have been deposited with the company and receipts for the said amounts have already been furnished. It is not a case where the petitioners have enriched themselves by collecting money from the 2nd respondent and not remitting it to the account of the company. If the 2nd respondent did not understand the scheme or was under some misapprehension, blame could not be put on the petitioners. Accordingly, it is contended that the present registration of the crime is a pressurizing tactics adopted by the 2nd respondent at the behest of the some police officers who are close relatives of her to squeeze money out of the petitioners. It is therefore prayed that the First Information Report may be quashed.
4. The 2nd respondent has filed a counter affidavit detailing about what had transpired between the petitioners and her and she would say that she was made to believe that for getting easy gas cylinder, joining the scheme would be beneficial. She Crl.M.C. No.4479/2013 4 bonafide believing the words of the 2nd petitioner, joined the scheme and paid the amounts. She was under the bonafide belief that at the end of the third year, she could collect Rs.90,000/-. She was not made aware of the trap in the scheme in the sense that maturity value will depend upon the value of the shares at that point of time. It is also alleged that by inducing her to deposit money in the scheme, the petitioners earned pecuniary benefits. It could not be said that if, as a matter of fact, the allegations made by the 2nd respondent are true, there is no element of cheating. She was made to part with money under the bonafide belief that she would get the amount represented to her by the petitioners. At any rate, it is contended that it could not be said that the petitioners had no role to play in the incident.
5. Submitting on behalf of the petitioners, learned counsel for the petitioners contended that by no stretch of imagination, offence under Section 420 IPC can be attracted to the facts of the case. First of all, according to the learned counsel, there was no misrepresentation or fraudulent representation as now put Crl.M.C. No.4479/2013 5 forward by the 2nd respondent as she was told about details of the policy. It is also pointed out that having received Annexure II, she cannot be heard to contend that she was unaware about the scheme and she was misled by the petitioners. Learned counsel pointed out that at any rate there is no allegation that the petitioners have misappropriated any amount given to them by the 2nd respondent. It is therefore contended that the present attempt is to extract money as claimed by her from the petitioners. They have no obligation to do so.
6. Learned counsel for the 2nd respondent, on the other hand, pointed out that the claim made by the petitioners that the 2nd respondent served with Annexure II is disputed. She never had received the same. It is also pointed out that at any rate, investigation has not yet commenced and this Court was approached almost within ten days of registration of the crime depriving the Police of the opportunity to investigate into the crime and collect materials against the petitioners.
7. Learned counsel appearing for the 2nd respondent relied on the following decisions in support of his case. Crl.M.C. No.4479/2013 6
1. State of Haryana and others vs. Ch.Bhajan Lal and others (AIR 1992 Supreme Court 604).
2. T.Vengama Naidu vs. T. Dora Swamy Naidu and others [(2007) 12 SCC 93].
3. State of Karnataka vs. Pastor P. Raju [(2006) 6 SCC 728].
4. Kuriachan Chacko and others vs. State of Kerala (2008 (3) KHC 155).
5. Devender Kumar Singla vs. Baldev Krishan Singla (2005 KHC 1512).
8. Invoking the principles laid down in the above decisions, it was contended that any misrepresentation or fraudulent representation inducing a person to part with money amounts to cheating and if that be so, the conduct of the petitioners in the present case cannot escape from falling within the ambit of the offence of cheating. Considerable reliance is placed on the decision in Kuriachan Chacko and others vs. State of Kerala (2008 (3) KHC 155) in that regard. It is pointed out that it will be quite inappropriate for this Court to interfere at this point of Crl.M.C. No.4479/2013 7 time and to abort an impartial investigation which alone can reveal the truth. It is not a case where bald allegations have been made and it is also not a case where allegations in the complaint do not make out an offence. Accordingly, it is contended that no grounds are made out to quash the First Information Report.
9. Even assuming that the petitioners had acted as agents of the company and had canvassed business for the company made mention of earlier, the question that remains to be considered is whether their conduct can amount to cheating. The case of the 2nd respondent is that she was made to believe that if she deposits Rs.25,000/- per year continuously for three years, at the end of the third year, she would get a sum of Rs.90,000/-. It is significant to notice that except for the representation alleged to have been made by the petitioners, the 2nd respondent has no case that she was served with any pamphlet or any other materials which would support her claim that she was made to believe that if she deposits Rs.25,000/- continuously for three years, at the end of the third year, she would get Rs.90,000/-. Crl.M.C. No.4479/2013 8
10. It is true that quashing of a First Information Report is rarely done. If any help is required in this regard, it is furnished in the decision in State of Haryana and others vs. Ch.Bhajan Lal and others (AIR 1992 Supreme Court 604) wherein it was held as follows:
71. ................ It will be appropriate to refer to a decision of this Court in State of Bihar v. J.A.C Saldanha (1 980) 1 SCC 554 at page 574: (AIR 1980 SC 326 at p. 339) whereinthis Court has disapproved the exercise of the extraordinary power of the High Court in issuing a prerogative writ quashing the prosecution solely on the basis of the averments made in the affidavit in the following words:
"The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its due from affidavits which in such a situation would hardly provide any reliable material.
In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more."
72. ............. In our considered view, these are all matters which would be examined only during the course of investigation and thereafter by the court on the materials collected and placed before it Crl.M.C. No.4479/2013 9 by the investigating agencies. The question whether the relations and friends of Ch. Bhajan Lal have independently purchased the properties out of their own funds or not also cannot be decided by the Court at this stage on the denial statement of Bhajan Lal alone.
73. While Mr. Rajinder Sachar and Mr. Garg took much pain to show that the reasons given by the High Court in respect of each of the instances are not legally sustainable, Mr. Parasaran submitted a tabular statement by listing out each of the instances of the alleged corruption indicted in the complaint the explanation given in the Writ Petition as well as in the counter affidavit related thereto and the reply in the rejoinder and urged that the allegations in the F.I.R. are nothing but a conglomeration of calumny and falsehood. As the entire matter stands only at the stage of the registration of the case and the investigation has not at all proceeded with on account'of the order of stay granted by the High Court, we do not.intend or propose to examine the truth or otherwise of each of the instances in snippet form and thereafter string them together and express any opinion either way, since in our view any such opinion may affect the case of either party or cripple the course of investigation".
Crl.M.C. No.4479/2013 10
11. In the decision in State of Karnataka vs. Pastor P. Raju [(2006) 6 SCC 728], it was pointed out that normally court should not exercise the powers under Section 482 Cr.P.C to interfere with the investigation of a case which falls within the exclusive domain of the police force and abort an impartial investigation. In the decision in Devender Kumar Singla vs. Baldev Krishan Singla (2005 KHC 1512), it was held in paragraph 7 as follows:
7. In order to appreciate the rival submissions, it would be necessary to consider on the background of the factual position as to whether offence punishable under Section 420, IPC is made out. Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security.
Section 415 defines "cheating". The said provision requires : (i) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do Crl.M.C. No.4479/2013 11 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. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or". The definition of the offence of cheating embraces some cases in which transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are : (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and the (iii) means rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section
420. (See Bashirbhai Mohamedbhai v. State of Bombay (AIR 1960 SC 979:1960 CriLJ 1383).
12. In the decision in Kuriachan Chacko and others vs. State of Kerala (2008 (3) KHC 155), it was held as follows:
"The Trial Court as well as the High Court considered the facts of the case and held that Crl.M.C. No.4479/2013 12 there is element of cheating inasmuch as a representation was made by the accused that every unit holder will get double the amount invested by him; the representation was false, the maker of the representation was aware that the representation was not true and by such representation, he deceived the victim to believe the representation to be true and actuated him to act on such representation. The promoters induced common public to part with money on the lure of doubling the amount. Prima facie, the Courts were satisfied that but for such representation and the benefit sought to be given under the scheme, the victims would not have acted on such representation. It was, therefore, a case of application of S.415, IPC. Prima facie case had been made out in absence of better explanation by the accused, If it is so, it could be said to be a case for application of S.420 read with S.34 IPC, of course, at this stage".
13. It was held that normally, court should not exercise its powers at such a premature stage and deprive the opportunity to the Police to investigate into the case. In the decision in Rajesh Bajaj vs. State N.C.T of Delhi (1999 KHC 452, it is pointed out Crl.M.C. No.4479/2013 13 that it is not necessary that all the details should be given in the complaint.
14. The complaint needs to contain only the brief statement of facts which would show that the ingredients of offence are made out. While one can have no quarrel with the above proposition at all, the question is whether how far it applies to the facts of the case. It is true that it is very seldom that the court exercises its power under Section 482 Cr.P.C to quash a First Information Report aborting the investigation by the Police. Once it is shown that the allegations in the complaint make out a cognizable offence, the court will be extremely shy to interfere with the freedom of the Police to investigate into the case since that is the domain of the Police and it is their exclusive privilege. But that does not mean that every complaint should be left to the mercy of the Police. It may be that cleverly worded complaints will have ingredients to make out an offence while in reality there is none.
15. In the case on hand, the allegation against the petitioners is that they had represented that if the 2nd respondent Crl.M.C. No.4479/2013 14 deposits Rs.25,000/- per year continuously for three years, at the end of the third year, she would get a sum of Rs.90,000/-. She has no case that any document was given to her in that regard showing that the representation so made by the petitioners is true. Even though the 2nd respondent denies of having received Annexure II, that being a basic document, it is difficult to accept that she would not have received the same.
16. It is quite probable that she might not have cared to see the details of Annexure II as is usual case. The claim that the petitioners induced her and cheated her is too far fetched. The only benefit that they can receive is commission by inducing her to do so. The exact amount of commission or the benefit derived by the petitioners is also not disclosed in the complaint. The complaint seems to be that she did not get the amount alleged to have been promised by the petitioners.
17. It is significant to notice that there is no allegation of misappropriation of the amount given by the 2nd respondent to the petitioners. There is also no complaint that the amount so given were not deposited with the company.
Crl.M.C. No.4479/2013 15
18. Under the above circumstances, merely on the basis of allegation that she was promised a sum of Rs.90,000/- it will be too far fetched to come to a conclusion that the offence under Section 420 IPC is made out.
In the result, this Crl.M.C is allowed. Annexure V First Information Report shall stand quashed and all further proceedings as against the petitioners shall stand dropped.
Sd/-
P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.