Kerala High Court
Abdul Razack Managalasseryil vs State Of Kerala on 18 June, 2025
Author: V.G.Arun
Bench: V.G.Arun
2025:KER:45064
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
CRL.MC NO. 9854 OF 2023
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.142 OF 2023 OF JUDICIAL
MAGISTRATE OF FIRST CLASS-I, KANNUR
PETITIONER:
ABDUL RAZACK MANAGALASSERYIL
AGED 54 YEARS
S/O.MOIDUNNI,MANGALASSERYIL HOUSE OTTAPPILAVU
PERUMPILAVU ,THRISSUR, PIN - 680519
BY ADVS.
SHRI.RAVI KRISHNAN
SMT.FEBA M. VARGHESE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKKULAM, PIN - 682031
2 STATION HOUSE OFFICER
KANNUR TOWN POLICE STATION, KANNUR DISTRICT,
PIN - 670002
3 SUBASH KAKKADAN
S/O.E.V.KUNHIRAMAN SWASTHY ,PALLIKUNNU,KANNUR,
PIN - 670004
BY ADVS.
SHRI.M.K.SUMOD
SMT.VIDYA M.K.
SHRI. RAJ CAROLIN V.
SMT.THUSHARA.K
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.06.2025,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. No.9854 of 2023
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2
ORDER
Dated this the 18th day of June, 2025
Petitioner is the 1st accused in Crime No.1126 of
2022 registered at the Kannur Town Police Station for
the offence punishable under Section 420 read with
34 of the Indian Penal Code, now pending as
C.C.No.142 of 2023 on the files of the Judicial First
Class Magistrate Court-I, Kannur.
2. The crime was registered on the basis of a
complaint filed by the 3rd respondent. The allegations
in the complaint are to the following effect;
The complainant is the director of an enterprise
named Malabar Agri Expo and Delta Trading Middle
East EZE, which is engaged in the business of
exporting coconuts. Pursuant to an agreement
arrived at between the complainant's enterprise and
the petitioner, coconuts were exported based on the
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orders placed by the accused from 2018 onward.
Although the payments for the initial consignments
were made promptly, the accused defaulted
payments from May, 2019 onwards. Even then, the
complainant kept on sending the consignments on
the understanding that the payments, along with the
outstanding amounts, will be made without delay.
Later, when the accused stopped replying to the
correspondence sent by the complainant and even
refused to pick-up his calls, it became evident that
the accused had no intention to pay. The subsequent
conduct of the accused also revealed that they had
the intention to cheat from the very inception.
3. Based on the complaint, the Police conducted
investigation and filed a report stating that the
dispute involved is of civil nature. Thereupon, the 3 rd
respondent filed a protest complaint and cognizance
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for the offence under Section 420 read with 34 of the
IPC is taken by the jurisdictional court. Hence, this
Criminal Miscellaneous Case.
4. Learned Counsel for the petitioner contended
that, even if the allegations are accepted in their
entirety, only a dispute of civil nature is made out.
According to the Counsel, the attempt of the 3 rd
respondent is to clothe such dispute as a criminal
offence, so as to bring pressure upon the accused. It
is contended that, dispute with respect to commercial
transactions cannot result in criminal prosecution for
the offence under Section 420. In support of the
contention, the following decisions are pressed into
service. Hasanul Banna v. State of Kerala [2024
KHC Online 1480], Sachin Garg v. State of U.P.
[2024 KHC 6046], Radheyshyam and Others v.
State of Rajasthan and Another [2024 SCC Online
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SC 2311], M/s. Indian Oil Corporation v. M/s.
NEPC India Ltd. and Others [2006 KHC 1202] and
Binod Kumar and Others v. State of Bihar and
Another [2014 KHC 4700].
5. Learned Counsel for the 3 rd respondent
submitted that her client was lured into sending
consignments of coconuts to the accused by making
some payments initially. Only when the arrears
mounted to more than Rs.1 Crore and the accused
refused to pay, it became evident that they had the
intention to cheat all along. It is contended that
inasmuch as the allegations make out the offence
under Section 420, this Court will not be justified in
quashing the proceedings by invoking the power
under Section 482 of Cr.P.C.
6. A close scrutiny of the complaint reveals that
the petitioner had paid the amounts for the
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consignments sent between January, 2018 and May,
2019. Even if the petitioner defaulted the payments
for the subsequent consignments, that will not
attract the offence under Section 420, since the
earlier payments indicate that there was no intention
to cheat from the inception. It is settled law that the
failure of one party to abide by the terms of the
agreement with respect to a commercial transaction
cannot result in prosecution for the offence of
cheating, in the absence of intention to cheat from
the very beginning. As held by the Apex Court in
Radheyshyam (supra), non-performance of an
agreement and non-payment as per the agreed
terms cannot be the basis for a prosecution under
Section 420 of the IPC. The above legal position
apart, the fact that, after detailed investigation, the
Police had filed a refer report is yet another relevant
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aspect. In such circumstances, continuance of the
prosecution against the petitioner will be an exercise
in futility, there being no chance of the prosecution
ending in his conviction.
For the aforementioned reasons, the Criminal
Miscellaneous Case is allowed. Annexure A1 Final
Report in Crime No.1126 of 2022 of Kannur Town
Police Station and all further proceedings in
C.C.No.142 of 2023 on the files of the Judicial First
Class Magistrate Court-I, Kannur, as against the
petitioner, is quashed.
Sd/-
V.G.ARUN
JUDGE
NB/18-6
2025:KER:45064
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE FINAL REPORT/ CHARGE SHEET
SUBMITTED BY THE RESPONDENT POLICE IN CC NO.
142/2023 ON THE FILES OF JUDICIAL FIRST CLASS
MAGISTRATE COURT -I KANNUR
ANNEXURE A2 TRUE COPY OF THE COMPLAINT FILED BY THE DEFACTO
COMPLAINANT BEFORE THE KANNUR DISTRICT POLICE
CHIEF DATED 28.2.2022
TRUE COPY
P.A. TO JUDGE
