IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 Crl.Rev.Pet.No. 1124 of 2009() ------------------------------ CMP.2890/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PARAPPANANGADI .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------- NARAYANAKKURUPPU, S/O.N.NARAYANAKKURUPPU MOHANALAYAM,CHELARI THENHIPALAM P.O. BY ADV. SRI.E.NARAYANAN RESPONDENT(S): ACCUSED & STATE ---------------------- 1. ROHITH R.KURUPPU,S/O.RAVEENDRA KURUPPU, VARANAM P.O. CHERTHALA, ALAPPUZHA. 2. N.RAVEENDRAKURUPPU,S/O.NARAYANAKKURUPPU, KANJEERAMPARAMBIL VEEDU,VARANAM P.O. CHERTHALA, ALAPPUZHA. 3. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1124 of 2009 -------------------------------------- Dated this the 27th day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.3. 2. Heard counsel for petitioner and the Public Prosecutor. 3. Dismissal of a private complaint under Section 203 of the Code of Criminal Procedure (for short, “the Code”) is under challenge in this revision. Petitioner and respondent No.2 are direct brothers. Respondent No.1 is the son of respondent No.2 and during the relevant time was engaged in his college study. Case of the petitioner is that on the request of respondent No.2, he arranged residence for respondent No.1 in his residential building on the agreement that respondent Nos.1 and 2 would pay him rent at the rate of Rs.2,000/- per month. Respondent No.1 accordingly stayed in that room for the period from 2.9.2004 till October, 2008 and completed his study. While respondent No.1 vacated the room he offered that respondent No.2 will pay the rent as per the understanding that at the time of vacating the entire rent will be paid. But, respondent Nos.1 and 2 did not pay the rent. It is the further case of the petitioner that it was with the intention to cheat the petitioner that respondent Nos.1 and 2 offered to pay the amount when respondent No.1 vacated the room. Sworn statement of the petitioner and two witnesses were recorded by the learned magistrate. Learned magistrate has considered the sworn statement Crl.R.P.No.1124/2009 2 and held that no material is produced to show dishonest and fraudulent intention on the part of respondent Nos.1 and 2 at the time of taking the room on rent to cheat the petitioner and consequently dismissed the complaint under Section 203 of the Code. Learned counsel for petitioner contends that the finding of the learned magistrate is not correct. According to the learned counsel the act may give rise to a civil or criminal action and it is open to the parties to choose any one of it. Learned counsel also submitted that what the learned magistrate had to consider at this stage was not whether sufficient material to enter a conviction is produced but only whether there is sufficient ground to proceed, ie., whether a prima facie case is made out. Learned counsel placed reliance on the decisions in Imbicha Bava Haji v. Imbichi Bava (1965 KLT 771), Balraj Khanna v. Moti Ram (AIR 1971 SC 1389), Nirmaljit v. State W.B. (AIR 1972 SC 2638) and N.Devindrappa v. State of Karnataka ([2007] 5SCC 228. 3. In Imbicha Bava Haji's case this Court referred to the circumstances to be considered by the magistrate. It is stated that for determining the question whether any process is to be issued or not, what the magistrate has to be satisfied with is whether there is “sufficient ground for process” and not whether there is sufficient ground for conviction. In Balraj Khanna's case, Apex court has stated that where the magistrate is satisfied on the basis of the material placed before him by a complainant that the prima facie Crl.R.P.No.1124/2009 3 case is made out, he must commit the accused for trial. The same view was taken in Nirmaljit's case. In Devindrappa's case in paragraph 6, the Apex Court has observed that, “On the other hand, the case of the prosecution was that the appellant-accused was not the owner of the land and he made the complainant to believe that he was the owner of the land and for selling a plot of the land he received part of the sale consideration as advance from the complainant though he subsequently did not allot him any land despite repeated requests.” (emphasis supplied) 4. What Section 203 of the Code requires is that if after considering the statements on oath of the complainant and of the witnesses and the result of the enquiry or investigation under Section 202 the magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. In this case, it is not disputed that respondent No.2 is the direct brother of the petitioner and respondent No.2 is the son of respondent No.2. Case is that there was an agreement between the petitioner and respondent No.2 as per which respondent No.1 was given a room in the residential building of the petitioner on rent and as per the agreement the rent was Rs.2,000/- per month payable as and when respondent No.1 vacated the room. It is the further allegation that Crl.R.P.No.1124/2009 4 respondent No.1 did not pay the amount though respondent No.2 vacated the room. Going through the order under challenge and hearing the learned counsel I am not satisfied that any material sufficient for the prima facie satisfaction as stated in Section 203 of the Code was produced. The decision of the Apex Court in Devindrappa's case rested on the factual basis that the complainant was made to believe by the accused that he was the owner of the land agreed to be sold but later it was revealed that the accused was not the owner. There was apparently a dishonest representation by the accused that he was the owner of the land agreed to be sold and on that representation he caused the complainant to pay part of the sale consideration in advance. No such factual situation arises in this case and what is involved is only a civil liability. I am not persuaded to think that any civil liability by an ingenious drafting of the complaint or a sworn statement accordingly could be converted into a criminal liability inviting the process of criminal law. It is not sufficient that materials are produced before the magistrate. What is required is that the magistrate is of the opinion that there is sufficient ground to proceed. Assuming that respondent Nos.1 and 2 did not pay the rent at the time respondent No.1 vacated the room or even that they deliberately did not pay the rent, that cannot amount to cheating. Dishonest or fraudulent inducement at the time of the agreement should have been shown, prima facie. Any tenant not paying the rent as agreed cannot be prosecuted for the offence of cheating by a clever drafting of the complaint. Learned magistrate has considered all relevant Crl.R.P.No.1124/2009 5 aspects and was of the opinion that no sufficient grounds existed to proceed further. I do not find anything illegal, irregular or improper in the finding that complaint is liable to be dismissed under Section 203 of the Code. Resultantly, revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks