IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 Crl.MC.No. 450 of 2011() ----------------------------------- CRIME NO.98/08 OF PETTAH POLICE STATION, THIRUVANANTHAPURAM ----------------------------------- PETITIONER(S): ACCUSED ---------------------------------------- RAJATHIALAKAM,S/O.VELAPPAN, QUARTERS NO.2,VIKAS LANE,VIKAS BHAVAN, THIRUVANANTHAPURAM. BY ADV. SRI.SUBHASH CYRIAC RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. CHIEF MANAGER,BANK OF BARODA, PALAYAM BRANCH,THIRUVANANTHAPURAM,PIN-695 001. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R2 BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH SRI.K.SANTHOSH KUMAR (KALIYANAM) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.450 of 2011 -------------------------------------- Dated this the 25th day of March, 2011. ORDER Petitioner is accused in Crime No.98 of 2008 of Vanchiyoor Police Station for offence punishable under Section 420 of the Indian Penal Code(for short, “the IPC”). That case was registered on a complaint preferred by the Chief Manager of Bank of Baroda, Palayam Branch. Gist of the complaint is that on 26.11.2002 petitioner availed a loan from the Bank of Baroda Housing Finance Ltd. (which later got amalgamated with the Bank of Baroda) on the security of six cents belonging to the petitioner and comprised in R.S.No.526/6-1 and 525/3. Later, between 28.05.2003 and 27.12.2004 petitioner sold the said property to different persons to cheat the Bank and thereby committed the said offence. Learned counsel submitted that allegations do not constitute any offence as alleged. Learned counsel for respondent No.2 maintained that sale of property which was mortgaged with the Bank was with intention to cheat the Bank. Learned Public Prosecutor submitted that after investigation final report is submitted alleging offence punishable under Section 420 of the IPC. 2. Cheating is defined in Section 415 of the IPC as deceiving any person fraudulently or dishonestly and inducing 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 Crl.MC No.450/2011 2 anything which he would not do or omit if he were not so deceived. Petitioner availed loan from Bank of Baroda Housing Finance Ltd. on 26.11.2002 on the security of his landed property. Sale of the said property is sometime between 28.05.2003 and 27.12.2004. I have gone through Annexure-I and find that the only allegation is that sale was with intent to cheat the bank. A mere allegation in that line is not sufficient. That the property which was given in mortgage as security for due repayment of the loan was subsequently sold cannot ipso facto lead to the conclusion that petitioner has cheated respondent No.2. It must be shown that petitioner had the intention to cheat the Bank even at the time of availing the loan on 26.11.2002. No question of inducement by the petitioner or delivery of property, act or omitting to do any act by the bank is involved as per the allegations in the complaint at the time petitioner sold the property. Moreover, if any mortgage is created in favour of the Bank, it continues to subsist notwithstanding the subsequent sales. I am inclined to think that no element of offence of cheating is made out in the complaint so far as the Bank is concerned. 3. Learned counsel for petitioner submits that petitioner who is a Police Constable was suspended from service following registration of the case. Learned counsel has expressed the hope that once petitioner gets back into the service he may be able to discharge the liability. 4. Learned counsel for respondent No.2 submitted that respondent No.2 has initiated steps under Securitisation and Reconstruction of Financial Crl.MC No.450/2011 3 Assets and Enforcement of Security Interest Act. I make it clear that right of respondent No.2 to proceed under the said Act or in any other manner for recovery of the amount shall not be affected by this order or any finding contained in this order. Resultantly this petition is allowed and the complaint, FIR and final report in Crime No.98 of 2008 of Vanchiyoor Police Station against the petitioner and all subsequent proceeding if any taken by the court concerned against the petitioner pursuant to the final report are quashed. THOMAS P.JOSEPH, Judge. cks