Jerry vs State Of Kerala
2024 Latest Caselaw 25742 Ker

Kerala High Court

Jerry vs State Of Kerala on 30 September, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

CRL.MC NO. 2227 OF 2018                1



                                                  2024:KER:72957
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946

                          CRL.MC NO. 2227 OF 2018

PETITIONER/S:

      1       JERRY
              ARAKKAL HOUSE, CHEMBOOKAVU, KUNNAMKULAM, THRISSUR
              DISTRICT.

      2       ROY
              ARAKKAL HOUSE, CHEMBOOKAVU, KUNNAMKULAM, THRISSUR
              DISTRICT.

      3       DEEPA JOY
              ARAKKAL HOUSE, CHEMBOOKAVU, KUNNAMKULAM, THRISSUR
              DISTRICT.

      4       MAYA JERRY
              ARAKKAL HOUSE, CHEMBOOKAVU, KUNNAMKULAM THRISSUR
              DISTRICT.


              BY ADVS.
              SRI.M.REVIKRISHNAN
              SRI.SANTHOSH P.PODUVAL


RESPONDENT/S:

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

      2       WILSON
              AGED 60 YEARS, S/O. CHIRIAKKU, CHRUVATHOOR,
              KUNNAMKULAM VILLAGE DESOM, THALAPPILLY TALUK,
              THRISSUR DISTRICT, PIN - 680 617.
 CRL.MC NO. 2227 OF 2018                      2



                                                                2024:KER:72957


              BY ADVS.
              ADVOCATE GENERAL OFFICE KERALA
              SRI.SANTHEEP ANKARATH



OTHER PRESENT:

              SRI.RENJITH.T.R, SR.PP


       THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   30.09.2024,          THE   COURT   ON       THE   SAME   DAY   PASSED   THE
FOLLOWING:
 CRL.MC NO. 2227 OF 2018                 3



                                                      2024:KER:72957

                  P.V.KUNHIKRISHNAN, J
                --------------------------------------
                 Crl.M.C. No. 2227 of 2018
                --------------------------------------
         Dated this the 30th day of September, 2024



                                  ORDER

This Criminal Miscellaneous case is filed to quash

Annexure-B FIR and all further proceedings in Crime No.

267/2018 of Kunnamkulam Police Station, Thrissur Rural.

respectively in Crime No. 267/2018 of Kunnamkulam Police

Station. The above case is registered alleging offences

punishable under Secs. 420, 422 r/w 34 IPC. The case is

registered based on a private complaint preferred by the 2 nd

respondent before the Judicial First Class Magistrate Court,

Kunnamkulam, which was forwarded under Sec.156 (3)

Cr.P.C.

2. The case of the defacto complainant in the

private complaint which leads to the registration of the FIR

2024:KER:72957 is as follows :

Accused Nos. 1 to 4 acquainted with the defacto

complainant and during the period between 25.07.2012 to

26.06.2014 obtained a total amount of Rs.1,70,00,000/- from

the defacto complainant on a promise to pay him interest

for the amount and further cheques were also issued

towards the liability. According to the defacto complainant,

the accused after receiving the total amount as aforesaid on

different occasions failed to repay the amount and interest

promised and thereby cheated the defacto complainant.

Annexure-A is the private complaint and Annexure-B is the

FIR. According to the petitioners, even if the entire

allegations are accepted, no offence is made out. Hence,

this Criminal Miscellaneous case is filed.

3. Heard the learned counsel for the

petitioners and the learned Public Prosecutor. I also heard

the learned counsel appearing for the 2nd respondent.

4. According to the petitioners, Annexure-A

complaint and consequential Annexure-B FIR does not make

2024:KER:72957 out any criminal offence against the accused. According to

the petitioners, allegation at best, reveal a monetary

transaction between the parties. It is also submitted that in

Annexure-C notice, a detailed narration of the transaction

between the parties have been made and it is explicitly

stated that the cheques in question were issued along with

several other security documents as security for the amount

lend. It is submitted that the 2 nd respondent is running

money lending business. The further submission is that in

Annexure-C, it was specifically averred that the liability due

with interest has been cleared by the accused, but still the

security documents including the cheques were not

returned. It is also submitted that a perusal of Annexure-B

would show that the cheque and the other documents have

been received by the money lending establishment of the 2 nd

respondent. It is also submitted that about 16 complaints

under Sec. 138 of the Negotiable Instruments Act have been

initiated against the accused by the 1st respondent making

use of the blank signed cheque leaves issued as security, at

2024:KER:72957 the time of obtaining the loan. Hence, it is submitted that

the continuation of the criminal prosecution is an abuse of

process of court. The counsel for the 2 nd respondent

submitted that only FIR is registered and this Court may not

interfere with the criminal investigation.

5. This Court considered the contentions of the

petitioners and the respondents. This Court perused

Annexures A and B. A perusal of the documents would show

that it is only a money transaction. The admitted case of the

2nd respondent is that an amount of Rs.1,70,00,000/- is

obtained by the defacto complainant on a promise to pay

him interest for the amount and the amount is not paid.

Whether the same amounts to an offence under Sec. 420

IPC is the question.

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 :

2024:KER:72957

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) "

13. ... Any effort to settle civil disputes and claims,

2024:KER:72957 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

2024:KER:72957 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 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 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

2024:KER:72957 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 averments in Annexures- A and B. I am of

the considered opinion that this is only a monetary

transaction in which only civil liability is there. It is also

clear from the averments that the prosecution under

Sec.138 of the Negotiable Instruments Act is already

initiated. If that is the case, the continuation of the

prosecution is not necessary. But, I make it clear that the

civil proceedings, if any and the prosecution under Sec. 138

of the Negotiable Instruments Act will continue,

untrammeled by the observation in this order.

9. Therefore, this Criminal Miscellaneous case

is allowed.

All further proceedings against the petitioners in

2024:KER:72957 Crime No.267/2018 of Kunnamkulam Police Station are

quashed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SKS

2024:KER:72957

PETITIONER ANNEXURES

ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 2ND RESPONDENT HEREIN BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, KUNNAMKULAM.

ANNEXURE B TRUE COPY OF THE F.I.R. IN CRIME NO.

267/2018 OF KUNNAMKULAM POLICE STATION, THRISSUR RURAL.

ANNEXURE C TRUE COPY OF THE NOTICE DATED 27/11/2017

AND 2 THROUGH THEIR LAWYER TO THE 2ND RESPONDENT AND OTHERS.

ANNEXURE D TRUE COPY OF THE REPLY NOTICE ISSUED BY THE 2ND RESPONDENT AND OTHERS THROUGH

DATED 05/12/2017.

ANNEXURE E TRUE COPY OF THE LAWYER NOTICE ISSUED BY THE 2ND RESPONDENT HEREIN AGAINST THE 2ND ACCUSED IN THE CRIME FOR INITIATING PROSECUTION UNDER SECTION 138 OF THE N.I ACT DATED 16/01/2018.

ANNEXURE F TRUE COPY OF THE LAWYER NOTICE ISSUED BY THE 2ND RESPONDENT HEREIN AGAINST THE 2ND ACCUSED IN THE CRIME FOR INITIATING PROSECUTION UNDER SECTION 138 OF THE N.I ACT DATED 16/01/2018 PERTAINING TO ANOTHER CHEQUE.

ANNEXURE G TRUE COPY OF THE REPLY NOTICE CAUSED TO BE ISSUED BY THE 3RD ACCUSED TO THE 2ND RESPONDENT DATED 25/01/2018.