Kerala High Court
P. G. Ajayakumar vs State Of Kerala on 31 October, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:82337
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 31ST DAY OF OCTOBER 2025 / 9TH KARTHIKA, 1947
CRL.MC NO. 2119 OF 2025
CRIME NO.305/2021 OF CHERUPUZHA POLICE STATION, Kannur
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1626 OF 2022 OF
JUDICIAL MAGISTRATE OF FIRST CLASS ,PAYYANNUR
PETITIONERS/ACCUSED 1 AND 2:
1 P. G. AJAYAKUMAR
AGED 57 YEARS
PARAMALA HOUSE, KANNIKKALAM,
PULINGOME, CHERUPUZHA,
KANNUR DISTRICT., PIN - 670511
2 SREEJA
AGED 45 YEARS
PARAMALA HOUSE, KANNIKKALAM,
PULINGOME, CHERUPUZHA,
KANNUR DISTRICT., PIN - 670511
BY ADVS.
SRI.M.ANUROOP
SRI.M.DEVESH
SHRI.MURSHID ALI M.
SMT.JYOTHIS MARY
RESPONDENTS/STATE AND VICTIM:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 JILJITH C I
AGED 48 YEARS
S/O. RAGHAVAN MASTER (LATE),
JINJAS HOUSE, THALASSERY, THIRUVANGAD,
NEAR KODIYERI BHAVAN, KANNUR DISTRICT., PIN - 670103
OTHER PRESENT:
PP.SRI.SANAL P. RAJ
CRL.MC NO.2119 OF 2025 2
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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
31.10.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO.2119 OF 2025 3
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Dated this the 31st day of October, 2025
ORDER
The petitioners are the accused 1 and 2 in C.C. No.
1626/2022 on the file of the Court of the Judicial First
Class Magistrate, Payyannur, which has arisen from
Crime No. 305/2021 registered by the Cherupuzha Police
Station, alleging the commission of the offence
punishable under Section 420 read with Section 34 of
the Indian Penal Code.
2. The crux of the prosecution case is that: in August
2015, the accused 1 and 2, in furtherance of their
common intention to make unlawful gain and with the
intention to cheat the first witness, who is a mentally ill
son of the defacto complainant, made the first witness
believe that he would be made a partner in a poultry
business. Accordingly, they made the first witness
mortgage his property and secure a loan of Rs. 8/- lakh,
and pay Rs. 6,50,000/- to the accused persons. However,
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the accused persons, after receipt of the money, failed to
make the first witness a partner in the said business.
Thus, the accused have committed the above offences.
3. I have heard the learned Counsel appearing for
the petitioners and the learned Public Prosecutor.
4. The learned counsel for the petitioners contends
that, even if the allegations in Annexure A1 FIR and
Annexure A2 Final Report are taken on their face value,
the same would not constitute the offences under Section
420 of the IPC. The defacto complainant is no more.
There is no material to substantiate that the amount of
Rs. 6,50,000/- lakh was entrusted to the petitioners. It is
only on the basis of the statement allegedly given by the
defacto complainant that the FIR was registered. The
necessary ingredients to attract the offence under
section 420 of the IPC has not been made out. Actually,
the first witness had taken the loan from the bank and
spent the money for his opulent lifestyle. The petitioners
are doing jewellery business. They have nothing to do
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with the poultry or astrology business as alleged by the
prosecution. Hence, the Crl.M.C may be allowed.
5. The learned Public Prosecutor opposes the
Crl.M.C. He submits that a reading of Annexure A1 FIR
and Annexure A2 Final Report would clearly reveal the
petitioners' culpability in the crime. Although the final
report was filed on 31.08.2022, it is after three years
that the petitioners have filed the Crl.M.C, to quash the
proceedings, that too without any explanation for the
delay in filing the Crl.M.C. Moreover, the prosecution
has cited ten witnesses and has also produced cogent
materials to substantiate the petitioners' involvement in
the crime. The grounds raised in the Crl.M.C are matters
of evidence. Whether the petitioners had the mens rea to
cheat the defacto complainant, at the time of the
receiving of the money, is a matter to be decided by the
Trial Court. Therefore, the Crl.M.C may be dismissed.
6. The specific case of the prosecution is that, the
petitioners had received Rs. 6,50,000/- lakh from the son
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of the defacto complainant on the assurance that he
would be made a partner in their business. However,
they did not make him a partner and refused to return
the money.
7. The petitioners contend that there is no material
to prove the entrustment of the money. Moreover, there
is no material to show that the petitioners had the mens
rea to cheat the son of the defacto complainant. The
dispute between the parties in Annexure A1 FIR and
Annexure A2 Final Report does not attract the
ingredients of section 420 of the Indian Penal Code.
8. There is a host of precedential authority on the
contours of the inherent power to be exercised by this
Court under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (in short, 'BNSS'),
corresponding to Section 482 of the Code of Criminal
Procedure.
9.In India Oil Corporation v. NEPC India
Limited and Others [(2006) 6 SCC 736], the Hon'ble
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Supreme Court, after exhaustively considering the
earlier precedents on Section 482 Cr.P.C., has
comprehensively enunciated the principles to be
followed by the High Courts while exercising its inherent
powers in an application to quash a criminal complaint
/proceeding, in the following words:
"12. The principles relating to exercise of
jurisdiction under Section 482 of the Code of Criminal
Procedure to quash complaints and criminal proceedings
have been stated and reiterated by this Court in several
decisions. To mention a few--Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 (Cri)
234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335] Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6
SCC 194] , Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591] , State of Bihar v.
Rajendra Agrawalla [(1996) 8 SCC 164], Rajesh Bajaj v.
State NCT of Delhi [(1999) 3 SCC 259] , Medchl Chemicals
& Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269] ,
Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4
SCC 168 ] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645]
and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful
Haque [(2005) 1 SCC 122] . The principles, relevant to our
purpose are:
(i) A complaint can be quashed where the allegations
made in the complaint, even if they are taken at
their face value and accepted in their entirety, do not
prima facie constitute any offence or make out the
case alleged against the accused. For this purpose,
the complaint has to be examined as a whole, but
without examining the merits of the allegations.
Neither a detailed inquiry nor a meticulous analysis
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of the material nor an assessment of the reliability or
genuineness of the allegations in the complaint, is
warranted while examining prayer for quashing of a
complaint.
(ii) A complaint may also be quashed where it is a clear
abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or to
cause harm, or where the allegations are absurd and
inherently improbable.
(iii) The power to quash shall not, however, be used to
stifle or scuttle a legitimate prosecution. The power
should be used sparingly and with abundant
caution.
(iv) The complaint is not required to verbatim reproduce
the legal ingredients of the offence alleged. If the
necessary factual foundation is laid in the complaint,
merely on the ground that a few ingredients have
not been stated in detail, the proceedings should not
be quashed. Quashing of the complaint is warranted
only where the complaint is so bereft of even the
basic facts which are absolutely necessary for
making out the offence.
(v) A given set of facts may make out: (a) purely a civil
wrong; or (b) purely a criminal offence; or (c) a civil
wrong as also a criminal offence. A commercial
transaction or a contractual dispute, apart from
furnishing a cause of action for seeking remedy in
civil law, may also involve a criminal offence. As the
nature and scope of a civil proceeding are different
from a criminal proceeding, the mere fact that the
complaint relates to a commercial transaction or
breach of contract, for which a civil remedy is
available or has been availed, is not by itself a
ground to quash the criminal proceedings. The test
is whether the allegations in the complaint disclose a
criminal offence or not"
10. Likewise, in Kaptan Singh v. State of
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Uttar Pradesh and Others [(2021) 9 SCC 35], the
Hon'ble Supreme Court has emphatically held that, once
the investigation is complete and the charge sheet is
filed, the High Court should refrain from analysing the
merits of the allegations as if exercising the appellate
jurisdiction or conducting the trial. The inherent power
to quash a criminal proceeding is an exception and not a
rule. Although the power is quite broad and wide, it is to
be exercised sparingly and with caution.
11. It is also trite that though no statutory period
of limitation is prescribed under Section 582 of
BNSS/482 Cr.P.C., the litigant seeking to quash a
proceeding must approach the Court within a reasonable
time period; if not, he must convincingly address the
reasons for the delay. At any rate, the litigant cannot
approach this Court at his whim and caprice, merely
because no period of limitation is prescribed in the
statute. In such cases, the High Court can decline to
exercise its inherent jurisdiction.
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12. On an overall consideration of the materials
on record, I find that there are specific allegations raised
that the petitioners have received Rs.6,50,000/- on the
assurance of making the son of the defacto complainant
a partner in their business. However, they failed to make
him a partner and refused to return the money.
13. It is well-settled that to attract the offence of
cheating, it is to be established that the accused had the
dishonest intention right at the inception of the
transaction; whether the petitioners received the amount
or had the intention cannot be deciphered from materials
available on record. Instead, that is a matter to be
decided by the Trial Court. Moreover, there is no
explanation for the inordinate delay of three years in
filing the Crl.M.C, after the filing of the Annexure A2
Final Report.
In the afore-said circumstances, I dismiss the
Crl.M.C, but by reserving the right of the petitioners to
raise all the contentions before the Trial Court, including
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the filing of an application for discharge, if the charge
has not been laid till date. If such an application is filed,
the Trial Court shall consider the application, in
accordance with law, untrammelled by any observation
contained in this order.
Sd/-
C.S.DIAS, JUDGE
mtk/ 31.10.25
2025:KER:82337
PETITIONER ANNEXURES
Annexure A1 CERTIFIED COPY OF FIR AND FIS IN CRIME
NO. 305/2021 DATED 03-11-2021 OF THE
CHERUPUZHA POLICE STATION.
Annexure A2 CERTIFIED COPY OF FINAL REPORT IN CRIME
305/2021 DATED 25-08-2022 OF CHERUPUZHA
POLICE STATION
