IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 Crl.MC.No. 94 of 2006(B) ------------------------ CRIME NO. 810/2005 ODF CHALAKUDY POLICE STATION PETITIONERS: ACCUSED. ----------------------- 1. RAMAKRISHNAN, S/O.KUTTAN AGED 59 YEARS, KARAYAMPARAMBU, VETTILAPPARA, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. 2. KARTHU, W/O.RAMAKRISHNAN, AGED 57 YEARS, KARAYAMPARAMBU, VETTILAPPARA, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SMT.K.V.BHADRA KUMARI 1ST PETITIONER IS NO MORE AND IT IS RECORDED AS PER ORDER DATED 19-3-2009. RESPONDENT: COMPLAINANT. --------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2. THOMAS D. KALLELY, AGED 42 YEARS S/O. LATE DEVASSY, KALLELY HOUSE CHALAKJUDY P.O. PIN : 680 307, THRISSUR DISTRICT. IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 17-2-2009 IN CRL,M,.A. 540/2006 IN CRL.M.C. BNO. 94/2006. BY PUBLIC PROSECUTOR MR. THOMAS JOHN AMBOOKKEN SRI.P.NARAYANAN KUTTY FOR ADDL.R2 SRI.KRISHNA PRASAD. S FOR ADDL.R2 SRI.C.K.RAFEEK FOR ADDL.R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A. NO. 182/2006 IN CRL.M.C. NO. 94/2006 DISMISSED. 19-3-2009 SD/-M.C. HARI RNAI, JUDGE KS. TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO.94 of 2006 ======================= Dated this the 19th day of March 2009 ORDER This petition is filed by petitioners 1 and 2, who are accused Nos.1 and 2 respectively, in Crime No.810/2005 of Chalakudy Police station registered for the offence punishable under Section 420 of the Indian Penal Code. When this matter has taken up for hearing, memo is filed by the learned counsel for the petitioners that the first petitioner in this petition, the first accused in the above crime is no more and expired on 8-9-2006. Thus, the learned counsel has advanced the argument in the present case in respect of the second accused in the above crime, who is the second petitioner herein. 2. Statement of facts as alleged in the petition are as follows:- Crime No.810/2005 of Chalakudy Police Station was registered against the deceased first petitioner and also the second petitioner for the offence punishable under Section 420 of CRMC.94/2006 -2- the Indian Penal Code on the basis of the complaint filed by the additional second respondent in this petition wherein it was contended that both petitioners in this petition had entered into an agreement for sale in which the second respondent herein agreed to purchase the property having an extent of 2 acres and 64 cents belonging to the petitioners for a total sale consideration of Rs.18,50,000/-. The petitioners had received Rs.11,25,000/- as advance. Contrary to that agreement, the petitioners did not fulfil the agreement by executing the sale deed and thereby cheated the de facto complainant which is an offence punishable under Section 420 of I.P.C. True copy of the complaint is produced as Annexure-II. Annexure-I is true copy of the F.I.R.in Crime No.810/2005. Annexure-III is the copy of the plaint filed by the de facto complainant before the Sub Court, Irinjalakuda as O.S.No.554/20005 for specific performance. It is also alleged in this petition that no sufficient ingredients are there in Annexure-II complaint to attract the offence under Section 420 of I.P.C.and the continuance of proceedings against the petitioners is an abuse of process of court which is liable to be CRMC.94/2006 -3- quashed. 3. Heard the learned counsel appearing for the 2nd petitioner and for second respondent. 4. The first petitioner who is the first accused in the present case is the husband of the second accused/2nd petitioner. It is submitted by the learned counsel for the petitioners that the first petitioner is no more, but death certificate is not produced. Argument has been advanced by the learned counsel in respect of the second petitioner/second accused alone. It is submitted by the learned counsel that the averments in Annexure-II complaint is not sufficient to attract the offence under Section 420 of I.P.C. Simply because the second accused has deviated from executing the sale deed as alleged in the complaint and the mere wording of cheating alone is there which will not attract the offence under Section 420 of I.P.C. According to the learned counsel, there was no allegation regarding the dishonest intention at the time of the alleged sale agreement in order to attract the offence under Section 420 of I.P.C. The said argument has been opposed by the learned counsel for the second respondent and contended CRMC.94/2006 -4- that there was dishonest intention from the very beginning itself which can be inferred from the subsequent conduct and the circumstances of this case and that the second accused is not prepared to execute the sale agreement as promised and thereby cheated the de facto complainant. Section 415 reads as follows: 415.Cheating,-whoever, by deceiving any persons, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. From the very wording in that section it is specifically clear that the dishonest inducement should be there from the very beginning of the transaction without which the person so deceived will not deliver any property. In the present case, according to the learned counsel for the second respondent, he CRMC.94/2006 -5- has parted Rs.11,25,000/-as advance amount for portion of the sale consideration and agreed to execute the sale deed on 20-12-2005. But the dishonest intention of the parties/second accused herein to cheat the de facto complainant whereby he has parted away the advance amount, without which he will not give the amount as advance etc. are not there in the complaint. Instead it is alleged therein that the accused have cheated him by breach of contract which is punishable. The cheating as alleged in the complaint is that the accused are trying to alienate the property to somebody else and to mortgage the same and they are preparing to execute the sale deed and to mortgage the property to somebody else. This allegation also cannot attract the offence under Section 420 of I.P.C. 5. The learned counsel for the petitioner relied on the decision reported in Tomy v. Jaffer, 2000(2)K.L.J.455 whereby this Court in a similar situation has held that to attract the provisions of Section 420 the guilty intent at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfill the promise by itself CRMC.94/2006 -6- would not attract the provisions of Section 415 or Section 420. It is also held that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract. In the first part of Section 415 inducing must be dishonest or fraudulent and in the second part the inducing must be intentional and in order to constitute an offence of cheating the intention to deceive should be in existence at the time when inducement was offered. 6. It is the settled law that the inherent powers under Section 482 of Cr.P.C.should be exercised sparingly and with caution. In the absence of any sufficient ingredients to attract the offence under Section 420 of I.P.C., I find that continuance of the proceedings would be an abuse of process of court. On a reading of the entire allegations in the complaint, I find that it will not attract the offence under Section 420 of I.P.C. Hence, I find that this is a fit case where the extra ordinary inherent jurisdiction of this Court under Section 482 of Cr.P.C.can be exercised and the prayer in this petition can be allowed. The Crl.M.C. is allowed. Annexure-AI F.I.R. in Crime CRMC.94/2006 -7- No.810/2005 of Chalakudy police station and further proceedings initiated against the second accused are quashed. It is made clear that the first accused in the above crime is no more. As represented by the learned counsel for the petitioners and the correctness of the same can be verified by the second respondent/de facto complainant. M.C. HARI RANI JUDGE ks.