Kerala High Court
Sainaba vs State Of Kerala on 20 May, 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941
Crl.MC.No. 2323 of 2015
CRIME NO. 465/2015 OF KUNNAMKULAM POLICE STATION, THRISSUR
PETITIONER/ACCUSED NOS.1 TO 3:
1 SAINABA
W/O.HAMSA,KANIKARAVALIPPIL HOUSE,MALAMAKKAVU
P.O,THRITHALA VIA,PALAKKAD DISTRICT
2 HAMSA
S/O.MOHAMMED,MARIL VALAPPIL HOUSE,,MALAMAKKAVU
P.O,THRITHALA VIA,PALAKKAD DISTRICT
3 SULFIKKAR ALI
S/O. HAMSA,MARIL VALAPPIL HOUSE,,MALAMAKKAVU
P.O,THRITHALA VIA,PALAKKAD DISTRICT
BY ADVS.
SRI.DINNY THOMAS
SMT.ROSHNI MANUEL
SRI.JAISHANKAR V.NAIR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE STATION HOUSE OFFICER,KUNNAMKULAM
POLICE STATION,THROUGH THE PUBLIC PROSECUTOR,HIGH
COURT OF KERALA,ERNAKULAM 682 031
2 B.R.D SECURITIES LTD
BATHANY COMPLEX,T.C.R ROAD,KUNNUMKULAM REPRESENTED BY
ASS. MANAGER (HP) VINU.A .GEORGE 686503
BY ADVS.
SMT.R.RAJITHA
SRI.SANTHOSH P.PODUVAL
BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.04.2019,
THE COURT ON 20.05.2019 PASSED THE FOLLOWING:
Crl.M.C.No.2323/2015
2
R.NARAYANA PISHARADI, J
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Crl.M.C.No.2323 of 2015
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Dated this the 20th day of May, 2019
ORDER
The petitioners are accused 1 to 3 in the case registered as Crime No.465/2015 of the Kunnamkulam police station under Sections 420, 405 and 468 read with 34 of the Indian Penal Code. The petitioners seek to quash the proceedings initiated against them pursuant to Annexure-2 first information report, by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').
2. Annexure-2 F.I.R was registered against the petitioners on the basis of Annexure-1 complaint filed by the second respondent in the Court of the Judicial First Class Magistrate, Kunnamkulam which was forwarded to the Station House Officer, Kunnamkulam police station under Section 156(3) Crl.M.C.No.2323/2015 3 of the Code for investigation.
3. The material averments in Annexure-1 complaint are as follows: The first accused availed a loan of Rs.8,00,000/- from the complainant company on 19.05.2014 in respect of vehicle No.KL-09/AF/33 on terms of hire purchase. The first accused had agreed to repay an amount of Rs.10,08,000/-, including hire charges, in 24 instalments of Rs.42,000/- each and executed necessary documents in that regard. The second and the third accused had signed the loan agreement as guarantors. The first accused had received the amount and the vehicle had been entrusted with her. However, the accused did not repay any amount to the complainant company. The complainant has come to know that the accused have transferred the vehicle to some other person and removed the vehicle to some distant place with the intention to cheat the complainant and to create false documents. The act of the accused constitutes the offences under Sections 420, 405 and 468 read with 34 of the Indian Penal Code.
4. Heard learned counsel for the petitioners and the Crl.M.C.No.2323/2015 4 learned Public Prosecutor and also the learned counsel for the second respondent.
5. Learned counsel for the petitioners has contended that the averments in the complaint, even if accepted as true, do not constitute the offences alleged against the petitioners. Learned counsel would submit that the dispute between the parties is essentially of a civil nature and the criminal proceedings are initiated against the petitioners with a view to coerce them to pay the amount due to the complainant. Learned counsel would also submit that the complainant has already instituted a suit for realisation of the amount due from the petitioners.
6. On the contrary, learned counsel for the second respondent submitted that even from the very inception of the transaction the petitioners had no intention to repay the amount and that it is a clear case of cheating. Learned counsel would contend that whether the petitioners had the intention to deceive the complainant is a question of fact to be decided after the trial of the case.
7. The second respondent has alleged in the complaint Crl.M.C.No.2323/2015 5 that the petitioners have committed the offences under Sections 420, 405 and 468 read with 34 I.P.C. It would thus be necessary to examine the ingredients of the above offences and whether the allegations made in the complaint, read on their face, attract those offences.
8. Section 415 of the Indian Penal Code reads thus:
"415. Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do 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, is said to "cheat".
9. The ingredients to constitute an offence of cheating are as follows: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any Crl.M.C.No.2323/2015 6 property, or (b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)
(b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. A fraudulent or dishonest inducement is an essential ingredient of the offence of cheating.
10. Section 420 of the Indian Penal Code reads as follows:
"420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person deceived 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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
11. The ingredients to constitute an offence under Section 420 I.P.C are the following: (i) a person must commit the offence of cheating under Section 415 I.P.C ; and (ii) the person cheated Crl.M.C.No.2323/2015 7 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. Cheating is an essential ingredient of an act to constitute it an offence under Section 420 I.P.C.
12. The condition necessary for an act to constitute the offence under Section 415 I.P.C is that there was dishonest inducement by the accused. In the instant case, the first petitioner had availed a hire purchase loan of Rs.8,00,000/- from the second respondent. The first petitioner had also agreed that the amount would be repaid in instalments. The second and the third respondent were only guarantors to the transaction. There is no allegation in the complaint that the petitioners had induced the second respondent company to grant them any amount as loan or to entrust them any vehicle. There is thus nothing on the face of the complaint to indicate that the petitioners had dishonestly induced the second respondent to deliver any property to them. The ingredients necessary to constitute the offence of cheating are not made out from the allegations in the Crl.M.C.No.2323/2015 8 complaint and consequently, no offence under Section 420 I.P.C is made out against the petitioners.
13. Moreover, it has to be kept in mind that there is distinction between mere breach of contract and the offence of cheating. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently such a culpable intention right at the beginning, that is, when he made the promise, cannot be presumed. In the instant case, there is no averment in the complaint that the petitioners had dishonest intention of not repaying the loan amount when they availed the loan. There is nothing to show that at the time when the petitioners entered into the hire purchase/loan agreement, their intention was dishonest or fraudulent.
14. Section 405 of the Indian Penal Code reads as follows: Crl.M.C.No.2323/2015 9
"405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."
15. A careful reading of Section 405 I.P.C shows that the ingredients of the offence of criminal breach of trust are the following: (i) a person should have been entrusted with property, or entrusted with dominion over property; (ii) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; and (iii) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. Crl.M.C.No.2323/2015 10
16. In the instant case, the averment in the complaint is that the vehicle was entrusted with the first accused and that the accused have transferred the vehicle to some other person and removed the vehicle to a distant place with the intention to create false documents. There is no allegation that the accused have sold the vehicle to some other person. There is also no allegation that transfer of the vehicle to some other person was made by the accused in violation of any of the terms of the agreement executed by them. Averments as to dishonest misappropriation, conversion or use of the vehicle by the petitioners, in violation of any of the terms of the agreement executed by them, are absent in the complaint. Therefore, no offence under Section 405 I.P.C is also made out against the petitioners.
17. The other offence alleged against the petitioners is under Section 468 I.P.C. Section 468 I.P.C states that whoever commits forgery intending that the forged document shall be used for the purpose of cheating shall be liable for the punishment provided therein. There is no allegation in the Crl.M.C.No.2323/2015 11 complaint that the accused have actually forged any document or record and committed forgery. There is only an allegation that they removed the vehicle to some distant place with an intention to create false documents. The ingredients of the offence punishable under Section 468 I.P.C are also absent in the complaint.
18. The second respondent has already instituted a suit for realisation of the amount due from the petitioners.
19. The jurisdiction under Section 482 of the Code has to be exercised with care. In the exercise of its jurisdiction, this Court can examine whether a matter which is essentially of a civil nature has been given cloak of a criminal offence. Where the ingredients required to constitute the offences alleged are not made out from a bare reading of the complaint, the continuation of the criminal proceedings will constitute an abuse of the process of the court.
20. In the instant case, the dispute between the parties is essentially of a civil nature and it is more so, when the complainant has already approached the civil court claiming Crl.M.C.No.2323/2015 12 repayment of the loan amount due from the petitioners. The proceedings against the petitioners, based on Annexure-2 F.I.R, are liable to be quashed.
21. Consequently, the petition is allowed. Annexure-2 F.I.R and the proceedings initiated against the petitioners pursuant to it are hereby quashed.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr/09/05/2019 Crl.M.C.No.2323/2015 13 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE P1 ANNEXURE 1 CERTIFIE3D COPY OF THE PRIVATE COMPLAINT FILED BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS KUNNAMKULAM ANNEXURE P2 ANNEXURE -2 CERTIFIED COPY OF THE F.I.R IN CRIME NO 465 OF 2015 ANNEXURE P3 ANNEXURE -3 TUE COPY OF PLAINT IN O.S NO 519 OF 2015 BEFORE THE HON'BLE MUNSIFF'S COURT,CHAVAKKAD RESPONDENTS' EXHIBITS:
NIL TRUE COPY PS TO JUDGE