IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 CRL.MC.NO. 309 OF 2011() ------------------------------------- (CRIME NO.49 OF 2010 OF BEYPORE POLICE STATION) PETITIONER(S): --------------------- 1. SREENIVASAN, S/O.KRISHNAN, PULINTHAYA VEEDU, KANNATU KAVALA P.O., ALAPPUZHA DISTRICT. 2. YUSUF, S/O.ABU, KADEPARAMBIL, 2/513, CALVATHY, FORT KOCHI, KOCHI-1, ERNAKULAM DISTRICT. BY ADV. SRI.ASHIK K.MOHAMMED ALI RESPONDENT(S): STATE & DEFACTO COMPLAINANT ----------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (REPRESENTING THE SUB INSPECTOR OF POLICE, BEYPORE POLICE STATION, KOZHIKODE DISTRICT). 2. ABUBACKER PARAKKALAKATH, S/O.POKER, PERINKALTHODI HOUSE, BEYPORE P.O., KOZHIKODE DISTRICT, PIN-673 015. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.309 of 2011 ==================================== Dated this the 11th day of February, 2011 O R D E R Petitioners are accused 2 and 3 in Crime No.49 of 2010 of Beypore police station for offences punishable under Section 420 read with Sec.34 of the Indian Penal Code. Case was registered on a complaint filed by the second respondent in the court of learned Judicial First Class Magistrate-V, Kozhikode which was forwarded to the police for investigation under Section 156(3) of the Code of Criminal procedure. Police is investigating the case. Petitioners have approached this Court to quash the FIR and stall investigation of the crime alleging that allegations are false, no offence is involved and at the best it is only a case of civil liability for the petitioners. Learned counsel has placed reliance on the decision in Vir Prakash Sharma v. Anilkumar Agarwal & Another ([2007] 7 SCC 373), in particular observations in paragraphs 8 and 9 where ingredients of the offence under Sec.420 of the IPC that there must be intention to deceive at the very inception of the transaction is highlighted. On the facts of CRL.M.C. No.309 of 2011 -: 2 :- that case it was held that there was only a civil liability on account of failure to pay the amount due as per the cheque in question. According to the learned counsel decision relied on by him applied to the facts of the case and hence the FIR is liable to be quashed. Learned Public Prosecutor contended that to ascertain whether there was an intention to cheat, averments in the complaint as a whole must be read and that going through the averments in the complaint it could not be said that no offence is disclosed. The matter is under investigation and at this stage interference is not required. 2. I am persuaded to think that it is not merely an allegation as to the intention on the part of the accused to deceive that is decisive on the point. The complaint must be read as a whole to ascertain whether there was any intention on the part of the accused to cheat the complainant even at the very inception. 3. Case pleaded by respondent No.2 is that he is an agent engaged in auctioning of fish and while so petitioners and the first accused approached him with a request to give fish to them on credit basis. They made respondent No.2 believe that they will pay price of fish taken at the instance when they CRL.M.C. No.309 of 2011 -: 3 :- purchase fish at the second instance. Respondent No.2 believed that representation of petitioners and accused No.1. and entered into the transaction. But petitioners and first accused did not pay the amount as they had represented to him. In paragraph 4 of the complaint respondent No.2 stated about various transactions on different dates for a total sum of Rs.36,25,250/- of which petitioners and accused No.1 paid him only a sum of Rs.17 lakhs on different occasions. In paragraph 5 respondents No.2 proceeds to say that petitioners and first accused continued to get fish from him on credit basis. Later petitioners made him to believe that they will purchase fish further only on clearing the outstanding liability and for the said amount issued cheque dated 05.03.2009 making him believe that the cheque can be encashed through the Ernakulam branch of the Bank concerned. He was also told that the amount (Rs.14,25,230/-) would be paid before 05.09.2009. Believing the words of petitioners and the first accused respondent No.2 presented the cheque for collection but it was returned with the endorsement that there was no sufficient funds and that signature of the drawer differed as on 18.03.2009 (learned counsel submits that the said cheque was issued by the first accused). In paragraph 7, second respondent CRL.M.C. No.309 of 2011 -: 4 :- stated that on dishonour of the cheque he contacted petitioners and first accused, they again offered to pay the amount and made respondent No.2 believe so. He believed words of petitioners and the first accused. Petitioners and first accused did not pay the amount as agreed before the due date. Thereafter second respondent went in search of petitioners and the first accused to their houses and elsewhere but petitioners and the first accused were evading him on some ground or other. On 26.02.2010 the first accused is stated to have called respondent No.2 over telephone and threatened to kill him if he made any further demand for money. In paragraph 9, respondent No.2 stated that petitioners and the first accused were capitalizing the cordial relationship they had with the second respondent and were deceiving him. In paragraph 11 it is stated that but for the representation made by petitioners and the first accused and the inducement given to him, respondent No.2 would not have sold fish to them. Question whether there was intention to cheat respondent No.2 is to be decided on a reading of the entire allegations in the complaint and not by compartmentalizing any paragraph in the complaint and saying that there is no mention about the intention to cheat him at the inception. The decision of CRL.M.C. No.309 of 2011 -: 5 :- the Supreme Court refers to the factual situation emerging in that case. Every decision must be applied to the facts of the case involved. On going through the averments in the complaint I am unable to say at this stage that it does not disclose any offence so that the FIR must be quashed and further investigation in the matter be stalled. I do not find reason to interfere. Criminal Miscellaneous Case is dismissed. THOMAS P. JOSEPH, JUDGE. vsv