IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.MC.No. 2382 of 2005() (CC.591/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR) PETITIONER(S): ACCUSED NOS.2 & 3 1. KANAKA, AGED 53 YEARS, W/O.RAMANUNNI, KINATTUKARA PARAMBIL, PERINGOTTUKARA EAST, PERINGOTTUKARA P.O., THRISSUR TALUK. 2. PRADEESH, AGED 26 YEARS, S/O.RAMANUNNI, KINATTUKARAPARAMBIL, PERINGOTTUKARA EAST, PERINGOTTUKARA P.O.,THRISSUR TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN. S RESPONDENTS:/STATE/COMPLAINANT 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SIVANANDAN, S/O. SEKHARAN NAIR, PALLYIL, VEKKODE DESOM, VEMBALLUR, S.N.PURAM VILLAGE, KODUNGALLUR TALUK. BY PUBLIC PROSECUTOR SRI.TEKCHAND V.-R1 SRI.T.H.ABDUL AZEEZ FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.9715/2005 IN CRL.M.C.NO.2382/2005 DISMISSED 3.6.09. sd/-(C.T.RAVIKUMAR,JUDGE) K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P.(C) NO. --------------------------------------------- Dated this the 2nd day of June, 2009 JUDGMENT (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.P.(C) NO. JUDGMENT 2nd June, 2009 C.T. RAVIKUMAR, J. ----------------------------------------- CRL. M.C. NO.2382 OF 2005 ----------------------------------------- Dated this the 3rd day of June, 2009 ORDER 1. Accused Nos.2 and 3 in C.C No.591/05 on the files of the Judicial First Class Magistrate Court, Kodungallur are the petitioners. The charge is that they have committed offences under Section 420 and 34 of the Indian Penal Code. It was originated from Annexure-A complaint filed by the 2nd respondent herein and the allegation therein is that the petitioner along with the 1st accused approached him on 10.7.2004 and promised to secure employment of clerk for his son in the Kozhikode branch of the City Union Bank. The petitioners herein are respectively the mother and brother of the first accused. Annexure-A also contains certain other allegations against them as hereunder:- They made him believe that the uncle of the 2nd accused is one of the directors of the City Union Bank. A sum of Rs.5.5 lakhs was to be paid on 16.4.2004 for the purpose of fetching the said employment. As advance an Crl.M.C.No.2382 of 2005 -2- amount of Rs. 4.5 lakhs was paid on 16.7.2004. However, they failed to secure employment for his son as promised. On demand for the return of the said amount the 1st accused issued cheque No.39854 dated 17.3.2005 drawn on the Puzhuvil Branch of Canara Bank for the sum of Rs.4.5 lakhs. On its presentation, the same was dishonored for the reason “payment stopped by the drawer.” It was with the fraudulent intention to cheat him that the petitioners and the 1st accused approached him and dishonestly made the promise as aforesaid and induced him to pay Rs.4.5 lakhs. 2. The petitioners herein filed the above Crl.M.C to quash Annexure-A complaint filed by the 2nd respondent and all further proceedings pursuant there to in C.C.No.591/2005. The contention of the petitioners is that the said complaint did not make out any offence against them and it is therefore liable to be quashed, as against them. The further contention is that the 2nd respondent did not attribute intention to deceive which is the essential ingredient to constitute an offence under Section 420, I.P.C, as against them.. Yet another contention was raised that the allegations in Annexure-A complaint would constitute only a cause of action, at best, for a civil dispute. A bare perusal of Annexure-A complaint Crl.M.C.No.2382 of 2005 -3- would reveal the hollowness in the first two contentions of the petitioners. It would reveal that the said complaint contains averments carrying the ingredients to constitute the alleged offence under Section 420 of the I.P.C as against the petitioners as well. At the time of taking cognizance the court need only to consider the statement and the materials to support the same to see whether prima facie case is made out and the validity otherwise of the evidence in support of it need not be gone into at that stage. Merely because civil proceedings are also maintainable on the same set of allegations cannot be a reason to bring about abrupt termination of criminal proceedings. Though it is also contended that the complaint is manifestly attended with mala fides the petitioners did not succeed in establishing the same. A deception preceding the fraudulent or dishonest inducement is the essence to constitute the offence of cheating. Evidently, the 2nd respondent attribute intention to deceive against all the accused. When Annexure-A complaint, which is the genesis of the case contains the allegations disclosing commission of such an offence there is no scope or justification for interference by this Court with the decision of the learned Magistrate to proceed with the case. Crl.M.C.No.2382 of 2005 -4- In the light of the the above discussions the above Crl.M.C is liable to fail. In the result, the Crl.M.C. is dismissed. (C.T. RAVIKUMAR, JUDGE) spc