IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 Crl.MC.No. 386 of 2010() ------------------------------------ CC.133/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... PETITIONERS/ACCUSED ------------------------------------ 1. ADV. DAVIS PAUL, S/O.PAUL PORUTHUR, PORUTHUR HOUSE, OLLUR P.O., KAMPANIPADI, THRISSUR DISTRICT. 2. PRIYA, W/O.ADV. DAVIS PAUL, S/O.PAUL PORUTHUR, PORUTHUR HOUSE, OLLUR P.O., KAMPANIPADI, THRISSUR DISTRICT. BY ADV. SRI.JIJO PAUL RESPONDENTS/STATE AND COMPLAINANT ----------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - KOCHI -31. 2. BENNY ABRAHAM, S/O. ABRAHAM, ADVOCATE, CHAMBER HOSUE, GARDENS ROAD, THALASSERY P.O., KANNUR DISTRICT. R1 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. R2 BY ADV. SRI.JOSHI N.THOMAS. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 386 of 2010 ORDER ON CRL.MA.NO.577/2010 IN CRL.MC.NO.386/2010 DISMISSED 08/09/2010. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 386 OF 2010 =========================== Dated this the 8th day of September,2010 ORDER Petitioners are husband and wife. Second respondent is the complainant and petitioners the accused in C.C.133/2009 on the file of Judicial First Class Magistrate's Court, Thalassery taken cognizance for the offence under section 420 of Indian Penal Code on Annxure A complaint filed by the second respondent. This petition is filed under section 482 of the Code of Criminal Procedure to quash the cognizance taken contending that the ingredients of an offence is not attracted, and it is purely a civil dispute of non payment of the alleged loan. 2. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard. Crl.M.C.386/2010 2 3.Annexure A complaint shows that it is the case of the second respondent a practising Advocate that first petitioner another Advocate along with his wife, the second petitioner, borrowed Rs.50,000/- agreeing to repay the same within one month and did not repay the same as agreed. Though an offence under section 420 of Indian Penal Code is alleged, a reading of the complaint does not reveal the ingredients of an offence under section 420 of Indian Penal Code is attracted. Though it is alleged that petitioners induced the second respondent to pay Rs.50,000/- on the agreement that they will repay the same within one month, there is no case that at the time when the alleged inducement was made there was an intention to the petitioners to cheat the second respondent. Subsequent failure to repay the amount as agreed will not attract the offence. As rightly pointed out by the learned counsel appearing for the petitioners, the dispute alleged in Annexure A complaint is essentially a civil dispute. What is Crl.M.C.386/2010 3 alleged is that promising to repay, within one month, petitioners borrowed Rs.50,000/- and did not repay the same within the time as promised. That will not attract an offence under section 420 of Indian Penal Code. In such circumstances, continuation of the proceedings is only an abuse of process of the court. Petition is allowed. C.C.133/2009 on the file of Judicial First Class Magistrate's Court, Thalassery is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006