Kerala High Court
K.M. Sathyan vs The State Of Kerala on 7 November, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.MC NO. 9253 OF 2019 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.MC NO. 9253 OF 2019
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.212 OF 2018
OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR
PETITIONER/S:
K.M. SATHYAN
AGED 50 YEARS
S/O. MONY, KARUTHATTIL HOUSE, THIRUVAMPADY P.O,
THRISSUR DISTRICT, PIN 680 022.
BY ADVS.
ARUN SAMUEL
SMT.DEEPA K.RADHAKRISHNAN
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA AT ERNAKULAM, PIN 682 031.
2 JOSE,
AGED 67 YEARS
S/O. KANJIRAPARAMBIL VARUNNI, MUNDOOR DESOM,
PERAMANGALAM VILLAGE, THRISSUR TALUK, MUNDOOR P.O,
THRISSUR DISTRICT, PIN 680 541.
BY ADVS.
SAIJO HASSAN
CRL.MC NO. 9253 OF 2019 2
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DEVI.R.SENS(K/000671/2016)
SANGEETH MOHAN(K/3399/2023)
V.P.REJITHA(K/899/2001)
NITIN S.(K/374/2024)
DHEERAJ BABY(K/002187/2023)
MEERA J. MENON(K/000860/2024)
OTHER PRESENT:
SRI.RENJITH.T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 9253 OF 2019 3
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P.V.KUNHIKRISHNAN, J
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Crl.M.C. No. 9253 of 2019
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Dated this the 7th day of November, 2024
ORDER
The petitioner is an accused in CC No. 212/2018 on
the file of the Chief Judicial Magistrate Court, Thrissur. The
above case is registered based on a complaint filed by the 2 nd
respondent herein alleging offences punishable under
Secs.420 & 506 (i) IPC.
2. It is alleged that the 2nd respondent had
executed an agreement on 22.12.2011 with the petitioner for
the construction of his residential house. The said agreement
was executed on the basis of advertisements published by the
petitioner in 'Malayala Manorama' daily. In accordance with
the afore agreement, the 2nd respondent paid an amount of
Rs.4,00,000/-. It is further alleged that, on 28.06.2012, the 2nd
respondent filed a complaint before the East Circle Inspector
of Police, Thrissur Town and consequently, the petitioner
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nd
promised the 2 respondent that the afore construction would
be completed as expeditiously as possible. Relying on the
assurance given by the petitioner, the 2 nd respondent did not
proceed with his petition, is the submission. However, despite
the said assurance, the afore construction was not effected by
the petitioner and accordingly, the 2 nd respondent filed
another petition before the East Circle Inspector of Police,
Thrissur Town. As a consequence thereof, the petitioner
approached the 2nd respondent and assured him that the afore
amount would be returned to him on or before 30.06.2013
and he was also informed that the petitioner has no objection
in engaging another contractor for the afore construction. But
the amount paid by the 2nd respondent was not returned by
the petitioner and hence, the 2nd respondent went to the
house of the petitioner on 22.01.2016 at 8 am. But the
petitioner verbally abused him and threatened him. Hence, a
complaint is filed against the petitioner alleging offences
punishable under Secs. 420 r/w 506 (i) IPC. Annexure-A1 is
the complaint. According to the petitioner, even if the entire
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allegations are accepted, no offence is made out against the
petitioner. Hence, this Criminal Miscellaneous case.
3. Heard the learned counsel for the petitioner
and the learned counsel appearing for the 2 nd respondent. I
also heard the learned Public Prosecutor.
4. Admittedly, there was an agreement entered
between the petitioner and the 2nd respondent. According to
the petitioner, he performed his part in the agreement
promptly. It is also submitted that the 2nd respondent
approached the Consumer Disputes Redressal Forum,
Ayyanthole, Thrissur with Annexure-A2 complaint and the
petitioner appeared before the Forum and filed his version as
evident by Annexure-A3. It is also the case of the petitioner
that he had sent a legal notice alleging non performance of
the agreement by the 2nd respondent as evident by Annexure-
A4 and the 2nd respondent replied to the same as evident by
Annexure-A5. It is submitted that the allegation against the
petitioner are all civil in nature and the allegation of the 2 nd
respondent is regarding the violation of the agreement.
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Hence, the offence under Sec.420 IPC is not made out is the
contention. I think there is force in the above argument.
According to the 2nd respondent, the petitioner violated the
agreement and not repaid the amount paid by him. The
petitioner disputed the same and the petitioner submitted
that the 2nd respondent violated the agreement. The same
only amount to a monetary dispute. The same will not attract
an offence under Sec. 420 IPC.
5. The Apex Court in Subbiah C @ Kadambur
Jayaraj v. Superintendent of Police [2024 KHC 6288]
observed that a civil litigation cannot be converted to criminal
prosecution. The relevant portion of the above judgment is
extracted hereunder :
40. "The complainant has clearly alleged that the
accused caused him monetary loss because the appropriate
share of profits was not passed on to him after some plots
from the entire chunk had been sold. This Court in the case
of Sarabjit Kaur v. State of Punjab and Anr, 2023 SCC
OnLine SC 201 observed that: - "
A breach of contract does not give rise to criminal
prosecution for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the
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transaction. Merely on the allegation of failure to keep
up the promise will not be enough to initiate criminal
proceedings".
41. Similarly, in the case of Vijay Kumar Ghai v. State
of W.B., 2022 (7) SCC 124, this Court while tracing the
earlier decisions on the subject observed as under:
24. This Court in G. Sagar Suri v. State of U.P. (G. Sagar
Suri v. State of U.P., 2000 (2) SCC 636) observed that it is
the duty and obligation of the criminal court to exercise a
great deal of caution in issuing the process, particularly
when matters are essentially of civil nature.
25. This Court has time and again cautioned about
converting purely civil disputes into criminal cases. This
Court in Indian Oil Corpn. (Indian Oil Corpn. v. NEPC India
Ltd., 2006 (6) SCC 736) noticed the prevalent impression
that civil law remedies are time consuming and do not
adequately protect the interests of lenders / creditors. The
Court further observed that : (Indian Oil Corpn case (Indian
Oil Corpn v. NEPC India Ltd., 2006 (6) SCC 736) "
13. ... Any effort to settle civil disputes and claims, which
do not involve any criminal offence, by applying pressure
through criminal prosecution should be deprecated and
discouraged."
42. Thus, we are of the firm view that the necessary
ingredients of the offences punishable under S.406 and
S.420 IPC are not made out against the accused appellants
from the admitted allegations set out in the complaint and
the charge sheet. It cannot be doubted that a dispute which
is purely civil in nature has been given a colour of criminal
prosecution alleging fraud and criminal breach of trust by
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misusing the tool of criminal law."
6. Similarly in Sharif Ahmed v. State of Uttar
Pradesh [2024 KHC 6251], the Apex Court observed the
basic ingredients of Sec. 420 IPC. The relevant portion of the
judgment is extracted hereunder :
37. "The chargesheet states that the offence under
S.420 is not made out. The offence of cheating under S.415
of the IPC requires dishonest inducement, delivering of a
property as a result of the inducement, and damage or harm
to the person so induced. The offence of cheating is
established when the dishonest intention exists at the time
when the contract or agreement is entered, for the essential
ingredient of the offence of cheating consists of fraudulent or
dishonest inducement of a person by deceiving him to deliver
any property, to do or omit to do anything which he would
not do or omit if he had not been deceived. As per the
investigating officer, no fraudulent and dishonest
inducement is made out or established at the time when the
agreement was entered."
7. In the light of the above principle, even if the
entire allegations in Annexure-A1 are accepted, I am of the
considered opinion that the offence under Sec. 420 IPC is not
made out.
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8. The other offence alleged is under Sec.506(i)
IPC. It is submitted that the petitioner threatened the 2 nd
respondent. The main allegation against the petitioner as per
Annexure-A1 complaint to attract the offence under Sec.506
is extracted hereunder :
".....അവസസാനനം പ്രതതിയുടടെ വവീടതിൽ 22-1-2016 തവീയ്യതതി രസാവതിടലെ 8 മണതിയയസാടടെ
അനനസായകസാരൻ ടചെന്നു സനംഖന ആവശനടപ്പെടയപ്പെസാൾ പ്രതതി അനനസായകസാരടന
തടെഞ്ഞു നതിർതതി കകൈ ഉയർതതി "കൈതിടസാനുള്ള വഴതി യനസാകതിയകസാ എന്നുനം
ഇറങതിയപ്പെസാടെസാ ടതണതി യപസായതിടല്ലെങതിൽ ടകൈസാന്നു കൈളയുടമന്നുനം" മറനം യകൈടസാൽ
അറപനം ടവറുപനം വരുന്ന യമസാശമസായ ഭസാഷയതിൽ ചെവീത പറയുകൈയുനം
ഭവീഷണതിടപ്പെടുത്തുകൈയുനം ടചെയതിട്ടുള്ളതസാണണ......."
9. Whether the same will attract the offence
under Sec.506 IPC is the question. The ingredients of Sec.506
IPC is considered by the Apex Court in Manik Taneja and
anr. v. State of Karnataka and anr. [2015 KHC 4046]. The
relevant portion of the above judgment is extracted
hereunder:
"13. S.506 IPC prescribes punishment for the offence of
criminal intimidation. "Criminal intimidation" as defined in
S.503 IPC is as under:
"503. Criminal Intimidation.-- Whoever threatens another with
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any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is
interested, with intent to cause alarm to that person, or to
cause that person to do any act which he is not legally bound
to do, or to omit to do any act which that person is legally
entitled to do, as the means of avoiding the execution of such
threat, commits criminal intimidation.
Explanation.-- A threat to injure the reputation of any
deceased person in whom the person threatened is interested,
is within this section."
14. A reading of the definition of "Criminal intimidation"
would indicate that there must be an act of threatening to
another person, of causing an injury to the person, reputation,
or property of the person threatened, or to the person in
whom the threatened person is interested and the threat must
be with the intent to cause alarm to the person threatened or
it must be to do any act which he is not legally bound to do or
omit to do an act which he is legally entitled to do.
15. In the instant case, the allegation is that the
appellants have abused the complainant and obstructed the
second respondent from discharging his public duties and
spoiled the integrity of the second respondent. It is the
intention of the accused that has to be considered in deciding
as to whether what he has stated comes within the meaning of
"Criminal intimidation". The threat must be with intention to
cause alarm to the complainant to cause that person to do or
omit to do any work. Mere expression of any words without
any intention to cause alarm would not be sufficient to bring
in the application of this section. But material has to be
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placed on record to show that the intention is to cause alarm
to the complainant. From the facts and circumstances of the
case, it appears that there was no intention on the part of the
appellants to cause alarm in the minds of the second
respondent causing obstruction in discharge of his duty. As
far as the comments posted on the Facebook are concerned, it
appears that it is a public forum meant for helping the public
and the act of appellants posting a comment on the Facebook
may not attract ingredients of criminal intimidation in S.503
IPC." (underline supplied)
10. In the light of the above principle, I am of the
considered opinion that the offence under Sec.506(i) IPC is
also not made out. Moreover, the offences alleged in
Annexure-A1 are not made out in the facts and circumstances
of the case. Therefore, the continuation of the prosecution
against the petitioner is not necessary.
Therefore, this Criminal Miscellaneous case is
allowed. All further proceedings against the petitioner in CC
No. 212/2018 on the file of the Chief Judicial Magistrate
Court, Thrissur are quashed. Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
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PETITIONER ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF COMPLAINT CMP NO.
2273/2018 DATED, 05/04/2018 ON THE FILES
OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE
COURT, THRISSUR .
ANNEXURE A2 A TRUE COPY OF THE COMPLAINT 157/2016
DATED 14/3/2016 ON THE FILE OF THE
CONSUMER DISPUTE REDRESSAL FORUM,
AYYANTHOLE, THRISSUR.
ANNEXURE A3 A TRUE COPY OF THE VERSION DATED
02/10/2016 SUBMITTED BY THE
PETITIONER/ACCUSED BEFORE THE CONSUMER
DISPUTE REDRESSAL FORUM, AYYANTHOLE,
THRISSUR IN COMPLAINANT 157/2016.
ANNEXURE A6 A TRUE COPY OF THE LEGAL NOTICE DATED
01/04/2016 ISSUED BY THE
PETITIONER/ACCUSED TO THE 2ND
RESPONDENT /DE-FACTO COMPLAINANT.
ANNEXURE A5 A TRUE COPY OF THE REPLY NOTICE DATED
07/04/2016 ISSUED BY THE 2ND
RESPONDENT/DE-FACTO COMPLAINANT TO THE
PETITIONER/ACCUSED.
