Ahmed Kabeer Umer vs State Of Kerala
2021 Latest Caselaw 3 Ker

            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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.