Kerala High Court

Hasanul Banna vs The State Of Kerala on 3 October, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                2024:KER:73928



          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946

                      CRL.MC NO. 7617 OF 2018

        IN CC NO.585 OF 2018 OF JUDICIAL MAGISTRATE OF FIRST

  CLASS ,TIRUR IN CRIME NO.71/2018 OF TIRUR POLICE STATION,

                            MALAPPURAM

PETITIONER/ACCUSED:

          HASANUL BANNA
          AGED 49 YEARS
          S/O ISMAYIL, ALANGATTUKARAN HOUSE, THEKKUMMURI
          P.O., TIRUR, MALAPPURAM DISTRICT, PIN 676 105.


          BY ADV SOJAN MICHEAL


RESPONDENTS/STATE & DEFACTO COMPLAINANT:

    1     THE STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
          OF KERALA, ERNAKULAM 682 031.

    2     RAJESH.K.
          S/O.VELAYUDHAN, AGED 30 YEARS, KADAMBIL HOUSE,
          PUDUPPALLI.P.O., TIRUR, MALAPPURAM DISTRICT,
          PIN - 676 102.


         BY ADVS.
         SRI.S.VISHNU (TRIPUNITHURA)
         SRI.KARTHIK BHAVADASAN
                                                       2024:KER:73928
CRL.MC No.7617 OF 2018

                                  2



OTHER PRESENT:

             SRI.RENJITH.T.R, SR.PP


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   03.10.2024,    THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
                                                                2024:KER:73928
CRL.MC No.7617 OF 2018

                                        3


                   P.V. KUNHIKRISHNAN,J.
            -----------------------------------
                  Crl.M.C.No.7617 of 2018
           ------------------------------------
         Dated this the 03rd day of October, 2024

                                    ORDER

This Crl.M.C is filed to quash the

proceedings in CC No.585/2018 on the files of

Judicial First Class Magistrate Court-I, Tirur,

arising from Crime No.71/2018 of Tirur Police

Station. The above case is charge sheeted against

the petitioner alleging offences punishable under

Sections 406 and 420 of the Indian Penal Code.

2. The above case is registered based on

a private complaint filed by the 2nd respondent

before the Judicial First Class Magistrate Court-I,

Tirur, which was forwarded under Section 156(3)

Cr.P.C. The allegation against the petitioner is

that, he and the 2nd respondent entered into an

agreement for innovating the house of the 2nd 2024:KER:73928 CRL.MC No.7617 OF 2018

respondent and the petitioner obtained an amount of

Rs.10,000/- on 25.04.2013 and Rs.2,00,000/- on

18.05.2013. He further alleged that he had obtained

an amount of Rs.20,00,000/- on various occasions on

the promise that the said amount would be spent in

the procurement of costly materials for renovation

of the house. However, accused used under quality

materials for the renovation of the house and the

renovation was done in such a manner that water was

leaking during the monsoon. Hence it is alleged that

accused committed the offence.

3. Heard the learned counsel for the

petitioner and the counsel appearing for the party

respondent. I also heard the Public Prosecutor.

4. The allegation against the petitioner

as per Annexure-IV final report, is extracted

hereunder:

ഒന്നാം സാക്ഷിയുടെ ഉടമസ്ഥതയിലുള്ള തിരൂർ

മുനിസിപ്പാലിറ്റി തെക്കുംമുറി എന്ന സ്ഥലത്ത് വാർഡ് XVI-

2024:KER:73928 CRL.MC No.7617 OF 2018

66 സ്ഥലത്തിലുള്ള പഴയ വീട് വില കൂടിയ മരങ്ങളും

സാമഗ്രഹികളും ഉപയോഗിച്ച് 35 ലക്ഷം രൂപക്ക്

പൂർത്തിയാക്കി 31.05.2014 തീയതിക്കുള്ളിൽ

കൈമാറണമെന്ന വ്യവസ്ഥയിൽ പ്രതി ഒന്നാം

സാക്ഷിയിൽ നിന്നും 25.04.2013 തീയതി മുതൽ

പലപ്പോഴായി 20 ലക്ഷം രൂപ കൈപറ്റി 12,04,765/-

രൂപക്കുള്ള പണി മാത്രം നടത്തി ബാക്കി പണം പ്രതി

സ്വന്തം ആഗ്രഹത്തിനായി ഉപയോഗിച്ച് പ്രതി ഒന്നാം

സാക്ഷിയോട് മനഃപൂർവം വഞ്ചന ചെയ്തിരിക്കയാൽ

പ്രതി ഇ.ശി.നി 406, 420 എന്നീ വകുപ്പുകൾ പ്രകാരം

ശിക്ഷാർഹമായ കുറ്റം ചെയ്തിരിക്കുന്നുവെന്ന് .

5. The allegation against the petitioner

is that there was an agreement between the

petitioner and the 2nd respondent in connection with

the concession of a house and certain amount was

transferred to the petitioner. But, the petitioner

completed the work using low quality materials and

hence, the petitioner committed the offence under

Section 420 of the Indian Penal Code. Whether the

same amounts the offence under Section 420 of the 2024:KER:73928 CRL.MC No.7617 OF 2018

Indian Penal Code is the question to be decided.

Even if the entire allegations are accepted, it's

only a violation of an agreement between the

petitioner and the 2nd respondent.

6. In C. Subbiah alias Kadambur Jayaraj

and Ors. Vs. The Superintendent of Police and Ors.

[2024 KHC 6288], the Apex Court considered the

ingredients of Section 420 of the Indian Penal Code.

It will be better to extract the relevant portion of

the above judgment.

"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 Anr5 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 2024:KER:73928 CRL.MC No.7617 OF 2018

beginning of the 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.6, 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 2024:KER:73928 CRL.MC No.7617 OF 2018

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 Section 406 and Section 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 misusing the tool of criminal law.

43. The Investigating Officer has also applied offences under Section 294(b) and Section 506(ii) read with Section 114 IPC in the charge sheet. On going through the entire charge sheet, we do not find any such material therein 2024:KER:73928 CRL.MC No.7617 OF 2018

which can justify invocation of the offence under Section 294(b) IPC which reads as below:-

"294. Obscene acts and songs.- Whoever, to the annoyance of others,

(a) ....

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

44. The complainant alleged that the accused abused him by using profane language. Section 294(b) IPC would clearly not apply to such an act. Apart from a bald allegation made by the complainant that A-1 abused him and intimidated him on 28th July, 2010, there is no material which can show that the accused indulged in criminal intimidation of the complainant so as to justify invocation of the offence punishable under Section 506(ii) IPC.

45. We have to be conscious of the fact that the complainant has tried to 2024:KER:73928 CRL.MC No.7617 OF 2018

misuse the tool of criminal law by filing the patently frivolous FIR dated 6th March, 2011, wherein the allegation is levelled regarding the so-called incident of criminal intimidation dated 28th July, 2010. The said allegation otherwise is also belied for the reason that in the FIR, the complainant states that he filed a complaint dated 29th July, 2010 in Kovilpatti West Police Station, but the RTI reply from the said police station clearly states that no such complaint was ever received.

46. Thus, we are persuaded to accept the contention of learned counsel for the accused appellants to hold that the criminal prosecution instituted against the accused appellants in pursuance of the totally frivolous FIR tantamounts to sheer abuse of the process of law.

7. In Sharif Ahammed Vs State of Uttar

Pradesh[ 2024 KHC 6251], the Apex Court again

considered the ingredients of Section 420 of the

Indian Penal Code. The relevant portion is extracted 2024:KER:73928 CRL.MC No.7617 OF 2018

hereunder:

" 37. The chargesheet states that the offence under Section 420 is not made out. The offence of cheating under Section 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."

8. In the light of the above principle, 2024:KER:73928 CRL.MC No.7617 OF 2018

this Court considered the allegation against the

petitioner, I am of the considered opinion that the

allegation against the petitioner will not attract

the offence under Section 420 of the Indian Penal

Code. Maximum, the same may amount to violation of

an agreement. Violation of agreement will not

attract Section 420 of the Indian Penal Code in all

situation. The defacto complainant may have civil

remedy or remedy before competent consumer court. If

the defacto complainant is advised to proceed with

the same, the same is left open and the defacto