IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942
Crl.MC.No.8865 OF 2019(G)
AGAINST THE ORDER/JUDGMENT IN CC 746/2019 OF JUDICIAL MAGISTRATE
OF FIRST CLASS - I, OTTAPPALAM ARISING FROM CMP NO.12874/2019 OF
JFCM-I, OTTAPALAM
PETITIONER/S:
AHMED KABEER UMER
AGED 43 YEARS
S/O UMER,KONDOORKARA THODI,
KANAYAM.P.O, POLLUR,SHORANUR,
PALAKKAD-679121.
BY ADVS.
SRI.SAIJO HASSAN
SRI.BENOJ C AUGUSTIN
SRI.RAFEEK. V.K.
SRI.U.M.HASSAN
SMT.P.PARVATHY
SMT.SURYA P SHAJI
SHRI.MANAS P HAMEED
SHRI.GAUTHAM MOHAN H.
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM-31.
2 ABOOBACKER SIDHIQ HASSAN,
AGED 29 YEARS, S/O.HASSAN V, CHOONDAKKARA,
VADANAMKURUSSI P.O., PALAKKAD - 679 121.
REPRESENTED THROUGH ARSHIDA SIDDIQ, AGED 21,
W/O.ABOOBACKER SIDHIQ HASSAN,
ONGALLUR-1 VILLAGE,PATTAMBI TALUK,
PALAKKAD-679313.
R2 BY ADV. NITHIANANDAN BALAGOPALAN
OTHER PRESENT:
SRI.C.S.HRITHWIK SR PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.03.2020, THE COURT ON 04.01.2021 PASSED THE FOLLOWING:
Crl.MC 8865/2019
2
O R D E R
Dated this the 4th day of January 2021 The petitioner is the sole accused in CC No.746/2019 on the files of the Judicial First Class Magistrate's Court-1, Ottapalam which was taken cognizance of by the learned Magistrate in consequence to filing of a private complaint by the 2nd respondent herein represented by his wife, as CMP No.12874/2019 for offences punishable under Sections 406 and 420 of the I.P.C.
2. The prosecution case, in brief, is that the de facto complainant is presently residing in Saudi Arabia where he is working with a company named M/s.Manah Trading Crl.MC 8865/2019 3 Establishment. The complainant has filed copies of his passport, visa and resident card issued by the Government of Saudi Arabia. The accused is alleged to be the Managing Partner of the above-mentioned Establishment. The business card of the accused is produced to prove that fact. He is presently in India. The complainant was approached by the accused, a close relative, during May 2011 offering him a job in the aforesaid Establishment. Relying on the assurances given by the accused, the complainant accepted the job offer and joined for duty immediately. About 3 months prior to the filing of the complaint, the complainant made a request to the accused to allow him to return to India on availing his statutory leave/vacation. The accused demanded ₹ 6 lakh for permitting Crl.MC 8865/2019 4 the complainant to go on leave and for releasing his passport for that purpose. He was threatened with a criminal charge in case he did not pay the amount. During the entire tenure of employment, the complainant was able to visit his native place only thrice, the last visit being in March, 2018 for about a fortnight. It is illegal on the part of the accused to have had retained the passport of the complainant. That apart, the complainant was also made to affix his thumb impression on a document written in Arabic, the contents of which is not known to him. The accused has since returned to India with the passport of the complainant, rendering him homeless and stranded in Saudi Arabia without any salary or accommodation.
The complainant, therefore, alleges that the accused has Crl.MC 8865/2019 5 committed an offence of criminal breach of trust by not returning the passport of the complainant and for dishonestly misappropriating it. By dishonestly inducing the complainant to deliver his passport to the accused, he has cheated the complainant committing offences punishable under Sections 406 and 420 of the I.P.C.
3. The learned Judicial First Class Magistrate's Court-1 recorded statements of the complainant's wife and witnesses and was satisfied that the ingredients essential for offences punishable under Sections 406 and 420 I.P.C are made out and accordingly, directed issuance of summons to the accused.
4. Aggrieved by the action of the Magistrate in issuing summons to the accused, he has approached this Court Crl.MC 8865/2019 6 seeking to quash the proceedings under Section 482 Cr.P.C mainly on the ground that no prima facie case has been made out to attract an offence punishable under Sections 406 and 420 of the I.P.C. It is further contended that the Court at Ottapalam has no territorial jurisdiction to entertain the complaint as the complainant is residing in Saudi Arabia and the alleged offence was committed in that country. According to the laws existing in Saudi Arabia, an employee cannot leave the country without the sanction of his sponsor who is a citizen of Saudi Arabia. Even the witness examined as CW3 before the Magistrate has deposed that the consent of the sponsor is essential to come home. That apart, the complaint is filed without seeking prior sanction from the Central Crl.MC 8865/2019 7 Government for filing a complaint in India for offences allegedly committed outside the country, as contemplated under Section 188 of the Cr.P.C. The allegation made in the complaint about the accused with holding or misappropriating the passport of the complainant is untrue. Even the wife of the complainant who has filed the complaint and was examined before the Magistrate as CW-1, has testified that she is not sure whether the passport of the complainant is with the accused. Hence it is prayed that the entire proceedings in CC No.746/2019 on the files of the Judicial First Class Magistrate's Court-1 may be quashed under the provisions of Section 482 Cr.P.C.
5. The 2nd respondent/de facto complainant Crl.MC 8865/2019 8 represented by his wife has appeared through counsel. Smt. Parvathy P., the learned counsel appearing for the petitioner and Sri.Nithyanandan Balagopalan, the learned counsel for the 2nd respondent as also the learned Public Prosecutor were heard. Records perused.
6. The de facto complainant admits that he had gone abroad to Saudi Arabia on accepting a job with M/s Manah Trading Establishment, Riyadh during the month of May 2011.
He has been visiting his native place and admittedly, the last time he visited was in March 2018. Thereafter he has not been able to return to India because his passport has been illegally detained by the petitioner/accused. Hence, it is contended that offences under Section 406 IPC for criminal breach of trust and Crl.MC 8865/2019 9 Section 420 IPC for cheating have been committed by the petitioner. The argument advanced by the petitioner seeking quashing of the proceedings under Section 482 Cr.P.C are on two grounds. Firstly, that no offence has been made out prima facie against the petitioner under Section 405 I.P.C or under Section 420 I.P.C. Secondly, it is contended that without getting previous sanction of the Central Government, no complaint can be entertained in India for offences committed abroad as contemplated under Section 188 of the Cr.P.C.
7. Per contra, the learned counsel appearing for the 2nd respondent submits that there is no prohibition under Section 188 Cr.P.C to take cognisance for offences committed abroad.
The sanction under Section 188 Cr.P.C can even be obtained Crl.MC 8865/2019 10 subsequent to the taking of cognizance or arresting of the accused.
8. Coming to the 2nd ground of contention raised by the petitioner regarding the maintainability of the complaint in view of the prohibition under Section 188 of the Cr.P.C, it will have to be held that the bar in the proviso to Section 188 of the Code applies only to inquiries and trials and not to investigations. The Hon'ble Supreme Court has in Thota Venkiteswaralu v. State of A.P and another [2011(9) SCC 527:
2011 KHC 4798] held that the Central Government make orders of sanction under the proviso to Section 188 of the code even after cognisance of offence is taken. Hence, the trial cannot proceed beyond cognizance stage without the sanction Crl.MC 8865/2019 11 contemplated under the proviso to Section 188 Cr.P.C. The contention of the petitioner in this regard is therefore not sustainable.
9. It is now to be examined whether there is prima facie material placed before the learned Magistrate against the petitioner so as to attract an offence under Section 405 punishable under Sections 406 and the offence punishable under Section 420 of the I.P.C.
10. The learned counsel appearing for the petitioner submits that going by the allegations made in the complaint produced as Annexure-1 and the other materials produced in support of the complaint, the main ingredient of entrustment for constituting offence under Section 406 I.P.C is absent in Crl.MC 8865/2019 12 this case. Inviting attention of this Court towards the definition of "criminal breach of trust" as provided under Section 405 I.P.C, it is submitted that the ingredient of criminal breach of trust is absent in the present case and therefore, the learned Magistrate has committed a mistake by proceeding to issue summons to the petitioner. Even if the allegation that the passport was entrusted to the accused is to be believed, mere refusal to return the passport entrusted by the complainant does not satisfy the requirement of Section 405 I.P.C. Refusal to return the passport could be on several grounds. The petitioner is not proved to be the owner of the organisation in which the complainant is allegedly working. He has admittedly returned to India after getting employment three times. Crl.MC 8865/2019 13 Without getting the passport, the complainant could not have returned to India. The offence under Section 405 I.P.C is therefore, committed when property which was entrusted to the accused was actually misappropriated or dishonestly converted for his own use or is otherwise dealt with in the manner indicated by section 405 I.P.C, which reads as under:
"405. Criminal breach of trust-Whoever, being in any manner entrusted with property, or with any dominion over the property, dishonestly misappropriated or converts to his own use that property, or dishonestly uses or dispose is of that property in violation of any direction of law prescribing the board in which such trust is to be discharged, or of any legal contract, express or implied, which he has made a touching the discharge of such trust, or wilfully suffers any other person so to do, commits open Court criminal breach of trust"."
Crl.MC 8865/2019 14 In the complaint it is stated that the petitioner is the owner of the company under the sponsorship of one Mr.Mansoor, a Saudi national. It is not understandable why the petitioner should insist on payment of ₹6 lakhs for releasing the passport when admittedly the complainant had on earlier three occasions travelled to India with his passport without any money being paid. There is no allegation that the passport allegedly entrusted to the petitioner was dishonestly misappropriated by him or was converted to his own use. It is therefore difficult to hold that the petitioner has prima facie committed an offence punishable under section 406 I.P.C.
11. There is no allegation in the complaint that the petitioner had fraudulently or dishonestly induced the Crl.MC 8865/2019 15 complainant to deposit his passport. To attract an offence of cheating it is necessary to show that the accused had fraudulent or dishonest intention at the time of providing employment to misappropriate the complainant's passport.
Mere failure on the part of the accused subsequently to handover the passport or refusal to grant leave to travel to India cannot be interpreted as an offence of cheating punishable under Section 420 of the I.P.C such a dishonest intention cannot be inferred from the mere fact that the passport was not returned to the complainant to facilitate his travel to India. Section 415 I.P.C which defines cheating has two essential ingredients. Firstly, the accused must 'dishonestly' or 'fraudulently' induce the complainant to deliver Crl.MC 8865/2019 16 any property. Secondly the accused should have intentionally induced the complainant to deliver that article or do something. Hence there must be intention at the inception.
12. In S.W. Palanitkar v. State of Bihar [AIR 2001 SC 2960], it is held thus:
"9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property (ii) that persons entrusted (a) dishonestly misappropriating or converting that property to his own use: or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law proscribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust.
10. The ingredients of an offence of cheating are: (i) there should be fraudulent or Crl.MC 8865/2019 17 dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or 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), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
When the complaint itself does not disclose the ingredients essential to make out an offence of cheating or criminal breach of trust as stated above by the Hon'ble Supreme Court, the accused is entitled to be discharged. (See Samir Sahay @ Sameer Sahay v. State of U.P. and another [AIR 2017 SC 5327] ).
Applying all these precedents, there is no hesitation to hold Crl.MC 8865/2019 18 that the prosecution against the petitioner needs to be quashed exercising the jurisdiction under Section 482 of the Cr.P.C.
In the result the Crl.M.C. is allowed and entire proceedings as against the petitioner herein in CC No.746/2019 on the files of the Judicial First Class Magistrate Court-1, Ottapalam is hereby quashed under Section 482 Cr.P.C.
Sd/-
ASHOK MENON JUDGE jg APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE 1 CERTIFIED COPY OF THE COMPLAINT PREFERRED BY THE 2ND RESPONDENT AS CMP NO.12874/2019 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE- I,OTTAPPALAM.
ANNEXURE 2 CERTIFIED COPY OF DAIRY EXTRACT OF CMP NO.12874/2019 OF JUDICIAL FIRST CLASS MAGISTRATE-1,OTTAPALAM.