Kerala High Court
Muhammed Haneefa vs State Of Kerala on 26 May, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
CRL.REV.PET NO. 2927 OF 2011
AGAINST THE ORDER DATED 25.10.2011 CRL.M.P.NO.5915 OF 2011 IN
CC NO.82 OF 2010 OF CHIEF JUDICIAL MAGISTRATE, THRISSUR
REVISION PETITIONERS/PETITIONERS:
1 MUHAMMED HANEEFA,
S/O K.B.MOIDEENSHA,
BISMI MANZIL, KANJIRANGADI,
KOORKANCHERRY.
2 SHAHEED, S/O MOIDEENSHA
BISMI MANZIL, AYYANTHOLE.
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.P.V.BALAKRISHNAN
RESPONDENT/RESPONDENT:
1 STATE OF KERALA
RERESENTEDBY THE SUB INSPECTOR OF POLICE,
THRISSUR EAST THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
*2 P. SAJITHA
W/O. K. HASHIM, ARAKKAL HOUSE,
MUTHUVATTUR P.O., CHAVAKKAD,
THRISSUR DISTRICT - 680101
*(IMPLEADED AS ADDL.R2 AS PER ORDER DATED
9.12.2011 IN CRL.M.A. 10598/2011 IN CRL.R.P.
2927/11)
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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SRI.SANGEETHA RAJ-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 26.05.2025, ALONG WITH Crl.Rev.Pet.2928/2011, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
CRL.REV.PET NO. 2928 OF 2011
AGAINST THE ORDER DATED 25.10.2011 IN CRL.M.P.NO.5069 OF 2011
IN C.C.NO.83 OF 2010 OF CHIEF JUDICIAL MAGISTRATE, THRISSUR
REVISION PETITIONERS/PETITIONERS:
1 MUHAMMED HANEEFA
S/O K.B.MOIDEENSHA,
BISMI MANZIL, KANJIRANGADI,
KOORKANCHERRY.
2 SHASHEED
S/O MOIDEENSHA,
BISMI MANZIL, AYYANHOLE.
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.P.V.BALAKRISHNAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
THRISSUR EAST THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
*2 P. SAJITHA
W/O. K. HASHIM, ARAKKAL HOUSE,
MUTHUVATTUR P.O., CHAVAKKAD,
THRISSUR DISTRICT - 680101
*(IMPLEADED AS ADDL. R2 AS PER ORDER DATED
9.12.2011 IN CRL.M.A. 10600/2011 IN CRL.R.P.
2928/11)
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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2025:KER:36580
SRI.SANGEETHA RAJ-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 26.05.2025, ALONG WITH Crl.Rev.Pet.2927/2011, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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ORDER
Since both these revision petitions are connected and
the parties are one and the same, they are disposed of by a
common judgment.
2. The 2nd respondent preferred Annexure A2
complaint before the District Police Chief, Thrissur against the
petitioners alleging that the petitioners approached her and
induced her to believe that if she deposits money in the
business run by them, she will be given profit every month
and the money will be returned as and when demanded and
believing the said words, she parted with Rs.22,00,000/- to
the petitioners. The petitioners thereafter cheated her
without giving the profit as agreed or returning the amount.
On the basis of Annexure A2 complaint, the Sub Inspector of
Police, East Police Station, Thrissur registered Annexure A1
FIR against the petitioners. After investigation, two final
reports were filed before the Chief Judicial Magistrate Court,
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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Thrissur (for short, 'the trial court'). Those final reports were
marked as Annexure A3 in both the revision petitions. Based
on Annexure A3 final report in Crl.R.P.No. 2927 of 2011,
C.C.No.82 of 2010 was registered and based on Annexure A3
final report in Crl.R.P.No.2928 of 2011, C.C.No.83 of 2010
was registered. The allegation in the final report in C.C.No.82
of 2010 is that the petitioners after inducement as mentioned
above, received Rs.22,00,000/- from the 2 nd respondent,
Rs.2,00,000/- from CW No.2 and Rs.27,00,000/- from CW
No.3. The total amount involved in the said case is
Rs.51,00,000/-. The allegation in the final report in C.C.No.83
of 2010 is that the petitioners after inducement, received
Rs.22,00,000/- from the 2nd respondent, Rs.9,40,000/- from
CW No.2 and Rs.10,00,000/- from CW No.3. The total
amount involved in the said case is Rs.41,40,000/-.
3. The petitioners appeared before the trial court.
They were released on bail. They filed separate petitions
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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under Section 239 of Cr.P.C. for discharge. Crl.M.P. No. 5915
of 2011 was filed in C.C.No.82 of 2010 and Crl.M.P. No.5069
of 2011 was filed in C.C.No.83 of 2010. The trial court after
hearing both sides, dismissed both the petitions as per
Annexure A5 orders. The said orders are under challenge in
these revision petitions.
4. I have heard Sri.Dinesh Mathew J. Murikan, the
learned counsel for the petitioners and Sri.E.C.Bineesh, the
learned Public Prosecutor.
5. The learned counsel for the revision petitioners
submitted that a close reading of Annexure A2 complaint,
Annexure A1 FIR, statement of the witnesses and the entire
final report would reveal that there is no sufficient ground for
proceeding against the revision petitioners. The learned
counsel submitted that there is no averment in Annexure A2
complaint that there was intention on the part of the
petitioners at the inception to cheat so as to attract Section
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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420 of IPC. The learned counsel further submitted that there
are no averments to attract the essential basic ingredients of
Section 406 as well. The learned counsel also submitted that
the attempt of the 2nd respondent is to convert an issue which
is purely civil and contractual in nature into a criminal case.
The trial court ought to have discharged the petitioners under
Section 239 of Cr.P.C., submitted the counsel. Reliance was
placed on Gopalakrishnan K. v. State of Kerala and
Another [2009 (4) KHC 506] and Ashok Kumar Jain v.
State of Gujarat and Another [2025 SCC OnLine SC 998]
in support of his submissions.
6. On the other hand, the learned Public Prosecutor
submitted that the materials on record would clearly show
that the ingredients of the offence under Sections 420 and
406 of IPC are made out and the trial court rightly dismissed
the petition for discharge. The learned Public Prosecutor
further submitted that re-appreciation of evidence is
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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impermissible in a revision.
7. Annexure A2 is the complaint based on which
Annexure A1 FIR is registered. There is clear averment in the
said complaint that the petitioners approached the 2 nd
respondent, made her believe that if she invested money in
the business conducted by them, she will be given monthly
profit and the amount deposited would be given back at any
time on demand, believing the said words, the 2 nd respondent
entrusted Rs.22,00,000/- to the petitioners and they cheated
her without giving the profit as promised and giving back the
amount when demanded. The said averments are sufficient to
attract the ingredients of Sections 406 and 420 of IPC. In
order to attract Sections 406 of IPC, there should be
entrustment and consequential misappropriation. The
averments in Annexure A2 complaint would clearly show that
the 2nd respondent entrusted the money to the petitioners
and it has not been returned, rather it was misappropriated
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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by the petitioners. Even though the petitioners admit the
receipt of money, they don't have a case that they have
repaid the money.
8. The learned counsel for the petitioners relied on the
decision of this Court in Gopalakrishnan K. (supra) and the
decision of the Supreme Court in Ashok Kumar Jain (supra)
to contend that the ingredients of Sections 406 & 420 of IPC
have not been attracted. In Ashok Kumar Jain (supra), it
was held that mere breach of contract cannot give rise to
criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right at the beginning of the
transaction. There is no dispute with regard to the said legal
proposition. As stated already, averment in Annexure A2
complaint would clearly show that the 2 nd respondent had put
forward a case that there was dishonest intention on the part
of the petitioners right from the beginning of the transaction,
i.e., when she parted with money to the petitioners. In
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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Gopalakrishnan K (supra) it was held that in the case of a
loan transaction, there is no entrustment of property so as to
commit breach of trust to constitute offence under Section
406 of IPC even if there is no prompt payment and the
mortgaged property was subsequently sold. That was a case
relating to the loan availed from a bank. Here the fact is
altogether different. As stated already, the definite case of
the 2nd respondent is that she parted with Rs.22,00,000/-,
induced by the promise given by the petitioners that she will
be paid profit and the amount deposited would be returned
as and when demanded, which was breached later on.
Therefore, the dictum laid down in the above decision cannot
be applied in the facts of these cases.
9. The learned counsel for the petitioners submitted
that it is a simple contractual transaction of civil nature. I
cannot subscribe to the said submission. Even though civil
element is there, the criminal offences under Sections 406
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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and 420 also are attracted.
10. After investigation, it was also found that the
petitioners collected money in a similar manner from the
other witnesses as well. It is settled that if the evidence
which the prosecution proposed to adduce to prove the guilt
of the accused are sufficient to attract the ingredients of the
offences, the power vested with this Court under Section 239
of Cr.P.C. cannot be exercised.
There is nothing on record to show that the charge
against the petitioners is groundless. Therefore, I see no
reason to interfere with the impugned orders. Accordingly,
these criminal revision petitions are dismissed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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APPENDIX OF CRL.R.P.NO.2927 OF 2011
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY FIR IN CRIME NO.556/2009 OF
THRISSUR EAST POLICE STATION DATED 20.07.2009
ANNEXURE A2 TRUE COPY OF THE COMPLAINT FILED BY THE DEFACTO
COMPLAINANT BEFORE THE SUPERINTENDENT OF POLICE,
THRISSUR DATED 18.07.2009
ANNEXURE A3 THE TRUE COPY OF THE FINAL REPORT IN CRIME
NO.556/2009 OF THRISSUR EAST POLICE STATION,
DATED 30.09.2009
ANNEXURE A4 THE TRUE COPY OF THE ORDER PASSED BY THIS
HONOURABLE COURT IN CRL.M.C.NO.2659/2011 DATED
16.8.2011
ANNEXURE A5 THE TRUE COPY OF THE ORDER PASSED BY CHIEF
JUDICIAL MAGISTRATE COURT IN CRL.M.P.NO.5915/
2011 DATED 25.10.2011
Crl.Rev.Pet.Nos. 2927 and 2928 of 2011
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APPENDIX OF CRL.R.P.NO.2928 OF 2011
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY FIR IN CRIME NO.556/2009 OF
THRISSUR EAST POLICE STATION DATED 20.07.2009
ANNEXURE A2 TRUE COPY OF THE COMPLAINT FILED BY THE DEFACTO
COMPLAINANT BEFORE THE SUPERINTENDENT OF POLICE,
THRISSUR DATED 18.07.2009
ANNEXURE A3 THE TRUE COPY OF THE FINAL REPORT IN CRIME
NO.556/2009 OF THRISSUR EAST POLICE STATION,
DATED 30.09.2009
ANNEXURE A4 THE TRUE COPY OF THE ORDER PASSED BY THIS
HONOURABLE COURT IN CRL.M.C.NO.2659/2011 DATED
16.8.2011
ANNEXURE A5 THE TRUE COPY OF THE ORDER PASSED BY CHIEF
JUDICIAL MAGISTRATE COURT IN CRL.M.P.NO.5069/
2011 DATED 25.10.2011
