Kerala High Court

Rasheed vs State Of Kerala on 22 October, 2024

Author: P. V. Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                                  2024:KER:78531
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

               THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

       TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946

                              CRL.MC NO. 562 OF 2018

       CRIME NO.250/2017 OF Town East Police Station, Thrissur

             AGAINST THE ORDER IN CC NO.173 OF 2017 OF CHIEF JUDICIAL

                              MAGISTRATE ,THRISSUR


PETITIONER/ACCUSED:

               RASHEED, AGED 48 YEARS, S/O.MUHAMMED KUNJU,
               NOOR PALACE, PRAYAR DESOM, CLAPPANA VILLAGE,
               KARUNAGAPALLY TALUK,KOLLAM DISTRICT.

               BY ADVS.
               SRI.SALIM V.S.
               SRI.H.NUJUMUDEEN

RESPONDENT/COMPLAINANT:

       1       STATE OF KERALA, REPRESENTED BY S.I. OF POLICE,
               TOWN EAST POLICE STATION, THRISSUR CITY,
               THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
               ERNAKULAM,PIN - 682 031.
       2       DR.DEEPTHI, AGED 30 YEARS
               DEVAKI MADHAVAM HOUSE RAM NAGAR,
               POONKUNAM THRISSUR EAST,
               THRISSUR DISTRICT -680002
               [ADDL R2 IS IMPLEADED AS PER ORDER DATED 02.03.2018 IN
               CRL.M.A.1909/18 IN CRLMC 562/18]

OTHER PRESENT:

               SRI.SANGEETHARAJ.N.R, PP

THIS       CRIMINAL   MISC.    CASE   HAVING    COME   UP   FOR    ADMISSION   ON
22.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.562/2018
                                        2

                                                            2024:KER:78531


                       P. V. KUNHIKRISHNAN, J.
                    -------------------------------------------
                            Crl.M.C.No.562 of 2018
                    -------------------------------------------
                   Dated this the 22nd day of October, 2024

                                    ORDER

This Criminal Miscellaneous Case is filed to quash the

proceedings in C.C.No.173/2017 of Chief Judicial Magistrate Court,

Thrissur. The above case is charge-sheeted against the petitioner

alleging offences punishable under Sections 406 and 420 of the Indian

Penal Code.

2. The prosecution case is that the petitioner with the

intention to defraud the defacto complainant, admitted his wife in the

hospital of the defacto complainant and treated there during the

period 12.03.2016 to 02.04.2016 and thereafter 25.04.2016 to

26.04.2016. It is also the case of the prosecution that the relatives of

the accused were also treated as outpatient in the Ayurvedic hospital

namely Satwik Ayurvedic Solutions run by the defacto complainant.

The total amount towards the treatment expenses was Rs.1,03,000/-.

2024:KER:78531 The same is not paid is the grievance. Hence it is alleged that the

accused committed the offences under Sections 406 and 420 IPC.

3. Heard.

4. This Court perused Annexure-A2 final report. It

will be better to extract the relevant portion of the final report

hereunder:

'പ്രതി, 1-)o സാക്ഷിയെ ചതി ചെയ്യണമെന്നുളള ഉദ്ദേശത്തോടും കരുതലോടും കൂടി 1-)o സാക്ഷി നടത്തിവരുന്ന തൃശൂർ കുന്നത്തുമന ലെയിനിലുള്ള Satwik Ayurvedic Solutions എന്ന ആയുർവേദ ആശുപത്രിയിൽ 12-03-2016 തിയ്യതി മുതൽ 02- 04-2016 തിയ്യതി വരെയും 25-04-2016 തിയ്യതി മുതൽ 26- 04-2016 തിയ്യതി വരെയും പ്രതിയുടെ ഭാര്യയെ വാതസംബന്ധമായ അസുഖത്തിന് കിടത്തിചികിത്സ നടത്തിയും, ബന്ധുക്കളെ OP ആയി ചികിത്സ നടത്തിയും ചികിത്സ ചിലവ് ഒരുമിച്ച് തരാമെന്ന്' പറഞ്ഞ് വിശ്വസിപ്പിച്ച് മരുന്നും ചികിത്സയും നടത്തിയ വകയിൽ 1-)o സാക്ഷിക്ക് കൊടുക്കേണ്ട 1,03,000 രൂപ (ഒരു ലക്ഷത്തി മൂവ്വായിരം രൂപ) കൊടുക്കാതെ വിശ്വാസവഞ്ചന നടത്തി ചതി ചെയ്തതായി വെളിവായിട്ടുള്ളതിനാൽ പ്രതി മേൽ വകുപ്പുകൾ പ്രകാരം ശിക്ഷാർഹമായ കുറ്റം ചെയ്തിരിക്കുന്നുവെന്ന്.'

5. The admitted prosecution case is that, certain

amount is due from the accused to the defacto complainant as

treatment charges and the same is not paid. In the first information

statement, which is produced as Annexure-A1, it is stated that an

amount of Rs.10,000/- is paid but the balance is not paid is the

2024:KER:78531 contention. The offences alleged are under Sections 406 and 420 IPC.

6. The Apex Court in Subbiah C. @ Kadambur

Jayaraj v. Superintendent of Police [2024 KHC 6288]

considered the ingredients to attract the offence under section 420

IPC. The relevant portion 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 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)

2024:KER:78531 "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 misusing the tool of criminal law.

43. The Investigating Officer has also applied offences under S.294(b) and S.506(ii) read with S.114 IPC in the charge sheet. On going through the entire charge sheet, we do not find any such material therein which can justify invocation of the offence under S.294(b) IPC which reads as below: - "294. Obscene acts and songs. - Whoever, to the annoyance of others, (a) xxxx xxxx xxxx (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. S.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 S.506(ii) IPC.

45. We have to be conscious of the fact that the complainant has tried to 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

2024:KER:78531 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. Similarly, in Sharif Ahmed v. State of Uttar

Pradesh [2024 KHC 6251] the Apex Court considered the ingredients

of Section 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.'

2024:KER:78531

8. The Apex Court in Vinay Kumar Ghai and

Others v. State of West Bengal and Others [2022 KHC 6328]

considered the ingredients of Sections 406 and 420 IPC. It will be

better to extract the relevant paragraph hereunder:

42. The order of the High Court is seriously flawed due to the fact that in its interim order dated 24/03/2017, it was observed that the contentions put forth by the Appellant vis-a-vis two complaints being filed on the same cause of action at different places but the impugned order overlooks the said aspect and there was no finding on that issue. At the same time, in order to attract the ingredients of Section of 406 and 420 IPC it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the petitioner and / or others to cheat and / or to defraud the complainant right from the inception. Furthermore it has to be prima facie established that due to such alleged act of cheating the complainant (Respondent No. 2 herein) had suffered a wrongful loss and the same had resulted in wrongful gain for the accused (appellant herein). In absence of these elements, no proceeding is permissible in the eyes of law with regard to the commission of the offence punishable u/s 420 IPC. It is apparent that the complaint was lodged at a very belated stage (as the entire transaction took place from January 2008 to August 2009, yet the complaint has been filed in March 2013 1.e., after a delay of almost 4 years) with the objective of causing harassment to the petitioner and is bereft of any truth whatsoever.

(underline supplied)

2024:KER:78531

9. In the light of the above principles, this Court

perused the first information statement and final report. I am of the

considered opinion that, even if the entire allegations are accepted, the

same will not attract under Sections 406 and 420 of the Indian Penal

Code. If any amount is due to the defacto complainant, the defacto

complainant is free to approach competent civil court to redress her

grievance, if law permits for the same. Considering the facts and

circumstances of the case, the offences under Sections 406 and 420

are not made out. Therefore, the proceedings against the petitioner

can be quashed.