IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 Crl.MC.No. 24 of 2007() ----------------------- I.A.1777/2005 in OS.282/2005 of MUNSIFF COURT, HARIPAD .................... PETITIONER(S): --------------- 1. VIJAYAKUMAR, S/O.SREENIVASAN PILLAI, KANNAMPARAMBIL HOUSE, VETTUVENI MURI, KARTHIKAPPALLY VILLAGE. 2. BINDHU, W/O.VIJAYAKUMAR, KANNAMPARAMBIL HOUSE, VETTUVENI MURI, KARTHIKAPPALLY VILLAGE. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): --------------- 1. HAREESH BABU, S/O.RETNAN, KAILAS VEEDU, PILAPPUZHA MURI, HARIPAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.SREEKUMAR FOR R1 SRI.K.S.MANU (PUNUKKONNOOR) FOR R1 PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.M.C. No.24 of 2007 ----------------------------------------------- Dated 3rd March, 2010. O R D E R Petition filed to quash Annexure V and also Annexure VI order of the Magistrate Court. 2. The first respondent herein filed a complaint as Annexure V, alleging offences under Sections 415, 511, 420 and 34 of the Indian Penal Code, against petitioners who are husband and wife. According to the allegations in the complaint, first respondent/complainant was persuaded by false representation made by petitioners that petitioners were prepared to sell a stretch of property to the defacto complainant for first respondent's use, as a way to his property from the public road. In fact, he had no necessity to purchase it, because the said way was used by the people for a very long time and they had the right to use the same. 3. But, an agreement was caused to be executed for the purchase of the property at a cost of Rs.2,50,000/- and defacto complainant was also induced to part with Rs.10,000/- as advance relating to the said transaction. This was done with a dishonest intention to cause wrongful loss to the defacto Crl.M.C. No.24/2007 2 complainant and to have wrongful gain by petitioners. Thereby petitioners had allegedly committed offence of cheating, in furtherance of common intention. They also attempted to cheat defacto complainant by making him part with balance amount, as sale consideration for the stretch of land. 4. Learned Magistrate took the case on file under Sections 415, 420 and 34 IPC and issued process to the petitioners. The said order is challenged in this case. The learned counsel for petitioners submitted that there is no case of cheating involved in this case. An agreement of sale of property was executed on 9.11.2005 and the property was intended for the use of defacto complainant, as a way leading from his property to the public road. An advance of Rs.10,000/- was paid and balance consideration of Rs.2,40,000/- was yet to be paid, within 24.11.2005 and sale deed was to be executed. 5. But, two days prior to this, on 22.11.2005 defacto complainant filed a suit before Munsiff Court stating that there was a right of way by easement of prescription over the stretch of land which is sought to be purchased in his favour. A petition was also filed for mandatory injunction, directing petitioners to Crl.M.C. No.24/2007 3 remove the fence so that defacto complainant could use the way. The said petition was dismissed on 17.12.2005, as per Annexure III order. 6. An appeal was filed before the District Court and the said appeal was also dismissed. After dismissing the petition for mandatory injunction, present complaint was filed against petitioner on 26.12.2005, without any bonafides, it is argued. There is absolutely no merit in the allegations made in the complaint. The defacto complainant filed O.S.47/06 for specific performance [Annexure(1-a)], it is pointed out. 7. On hearing both sides and on going through documents produced and the allegations in the complaint, it appears that defacto complainant was under the impression that he was entitled to get right of way over the property which was agreed to be sold in his favour. According to defacto complainant, petitioners, by persuading defacto complainant to execute the document, intended to cause wrongful gain to themselves and wrongful loss to the defacto complainant and thereby cheated him. 8. For a case of “cheating” under Section 415 IPC, Crl.M.C. No.24/2007 4 deception at the inception of the transaction is material and such deception is to be established. But there are only vague allegations in the complaint to disclose such deception. There are no specific allegations regarding the date, time or place which petitioners deceived defacto complainant by false representation etc. No purpose will be served, if the proceedings are continued against the petitioners, on the basis of the complaint, Annexure V. It is the assertions which are to be proved by prosecution to establish guilt of accused. I am also satisfied that continuance of proceedings will result in abuse of process of court. 9. Hence, the following order is passed : Annexure V and VI are quashed and all further proceedings initiated against petitioners on the basis of Annexure V and VI shall be dropped by trial court. The petition is allowed. K.HEMA, JUDGE. sou