Kerala High Court
Sanitha vs The State Of Kerala on 30 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.MC NO. 308 OF 2019 1
2024:KER:81201
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.MC NO. 308 OF 2019
CRIME NO.976/2014 OF Kallambalam Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.179 OF 2015
OF JUDICIAL MAGISTRATE OF FIRST CLASS - III, ATTINGAL
(TEMPORARY)
PETITIONER/S:
SANITHA
AGED 43 YEARS
D/O. SARALA, KURUPPUSERIL PUTHEN VEEDU,
THEELIKKULAM, KULASHEKHARAPRAM VILLAGE,
KARUNAGAPPALLY DESOM, KOLLAM DISTRICT.
BY ADV RAJESH. K.RAJU
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
2 SATYASEELAN,
AGED 63 YEARS
S/O. NEELAKANDAN, ODAKUZHI VILA VEEDU, NEAR GHS
NJEKKAD, NJEKKAD DESOM, CHEMMARUTHI VILLAGE.
CRL.MC NO. 308 OF 2019 2
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OTHER PRESENT:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 30.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC NO. 308 OF 2019 3
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P.V.KUNHIKRISHNAN, J
--------------------------------------
Crl.M.C. No.308 of 2019
--------------------------------------
Dated this the 30th day of October, 2024
ORDER
This Crl.M.C is filed to quash the proceedings in CC
No.179/2015 on the files of Temporary Court of Judicial
Magistrate of First Class, Attingal arising from Crime No.
976/2014 of Kallambalam Police Station. Petitioner is the 2 nd
accused in the above case and the 1 st accused is her
husband. The above case is charge sheeted alleging offences
punishable under Sections 420 read with Section 34 of the
Indian Penal Code. The case was registered based on a
complaint filed before the Judicial First Class Magistrate
Court-I, Varkala, which was forwarded under Section 156(3)
of Cr.P.C. Annexure A-I is the first information report and
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Annexure A-II is the final report.
2. The prosecution case is that the accused
with an intention to cheat the 2nd respondent and to obtain
wrongful gain to the accused, approached the defacto
complainant and promised a job for the son of the 2 nd
respondent in Titanium, Chavara. It is further submitted that
he collected an amount of Rs.2,70,000/-(Rs. Two Lakhs
Seventy Thousand only) for giving the amount to the Union
Members of Titanium. Since no employment was given, the
2nd respondent approached the accused to refund the
amount, and a cheque was issued for Rs.2,70,000/- by the
1st accused. When the cheque was presented, the same was
dishonored. According to the petitioner, even if the entire
allegations are accepted no offence is made out. Hence, this
Crl.M.C.
3. Heard counsel for the petitioner and the
Public Prosecutor. Even though, notice was issued to the 2 nd
respondent, there was no appearance for the 2 nd
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respondent.
4. According to the petitioner, even if the entire
allegations are accepted, there is no allegation against the
petitioner, who is the 2nd accused. According to the
petitioner, the marriage between the petitioner and the 1 st
accused in the case was solemnized on 26.06.1996 as per
Hindu rites and ceremonies. There were two children in the
wedlock. It is the case of the petitioner that there was
continuous matrimonial cruelty from the 1st accused towards
the petitioner, who is the 2nd accused in the case. The
petitioner also produced Annexure-AIII complaint submitted
by the petitioner before the Deputy Superintendent of Police,
Kollam and Annexure-AIV complaint filed by the daughter of
the petitioner to the Police Inspector, Karunagappally. It is
also submitted that the petitioner also approached Family
Court, Chavara for maintenance by filing MC No. 133/2015
against the 1st accused. The petitioner also filed a petition
under the Domestic Violence Act before the Judicial First
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Class Magistrate Court, Karunagappally is the submission. It
is the case of the petitioner that she has not issued any
cheque to the 2nd respondent and she has not received any
notice under Sec.138 of the Negotiable Instruments Act. The
petitioner also produced Annexures-AV and AVI sent by the
2nd respondent to the 1st accused and to the petitioner.
According to the petitioner, the above letters would show
that the 2nd respondent also has no grievance against the
petitioner.
5. This Court perused Annexure-AII final
report. A perusal of the same would show that the allegation
is against the 1st accused and except the vague statement
that the petitioner also cheated the 2nd respondent, there is
no serious allegation against the petitioner, who is the 2 nd
accused. Therefore, I am of the considered opinion that
there is nothing to connect the petitioner with the alleged
crime under Sec.420 IPC. Certain ingredients are necessary
to attract Sec.420 IPC.
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6. 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
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
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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 misusing the tool of criminal law."
7. 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
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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."
8. In the light of the above principle, this Court
considered the case of the prosecution as far as the
petitioner-2nd accused is concerned. I am of the considered
opinion that even if the entire allegations are accepted,
there is absolutely no material to connect the petitioner-2 nd
accused. Therefore, I am of the considered opinion that the
prosecution against the petitioner-2nd accused can be
quashed. But, I make it clear that this order is not applicable
to the 1st accused and the jurisdictional court will consider
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the case of the 1 st
accused, in accordance with law,
untrammeled by any observation in this order.
Therefore, this Criminal Miscellaneous case is
allowed. All further proceedings as against the petitioner
alone in CC No.179/2015 on the files of Temporary Court of
Judicial Magistrate of First Class, Attingal arising from Crime
No. 976/2014 of Kallambalam Police Station are quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SSG/SKS
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PETITIONER ANNEXURES
ANNEXURE-AI A TRUE COPY OF THE FIR NO.976/2014 DATED
16/07/2014 SUBMITTED BY THE SUB
INSPECTOR OF POLICE, KALLAMBALAM POLICE
STATION BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-I,VARKALA.
ANNEXURE-AII A TRUE COPY OF THE FINAL REPORT DATED
28/01/2015 SUBMITTED BY THE SUB
INSPECTOR OF POLICE, KALLAMBALAM POLICE
STATION BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, VARKALA.
ANNEXURE-AIII A TRUE COPY OF THE COMPLAINT DATED
20/07/2015 SUBMITTED BY THE PETITIONER
BEFORE THE DEPUTY SUPERINTENDENT OF
POLICE, KOLLAM.
ANNEXURE-AIV A TRUE COPY OF THE COMPLAINT DATED
07/05/2016 SUBMITTED BY KRISHNAPIRYA S.
BEFORE THE POLICE INSPECTOR,
KARUNAGAPALLY.
ANNEXURE-AV A TRUE COPY OF THE INLAND LETTER CARD
SENT BY THE 2ND RESPONDENT TO SUNILKUMAR
K.
ANNEXURE-VI A TRUE COPY OF THE LETTER SENT BY THE
2ND RESPONDENT TO THE PETITIONER.
