IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.MC.No. 727 of 2009(A) --------------------------------- CC.820/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... PETITIONERS/ACCUSED NOS.1 TO 5: ---------------------------------------------------- 1. GEETHA BAI, AGED 44 YEARS, W/O. LATE SUNDARAN, KALEEKKAL VEEDU, MUNNAMKUTTY, KILIKOLLUR. 2. SUKESH, AGED 22 YEARS, S/O. LATE SUNDARAN, KALEEKKAL VEEDU, MUNNAMKUTTY, KILIKOLLUR. 3. SULABHA, AGED 20 YEARS, S/O.LATE SUNDARAN, KALEEKKAL VEEDU, MUNNAMKUTTY, KILIKOLLUR. 4. SUJA, AGED 18 YEARS, D/O. LATE SUNDARAN, KALEEKKAL VEEDU, MUNNAMKUTTY, KILIKOLLUR. 5. BHAVANI, AGED 70 YEARS, M/O. LATE SUNDARAN, KALEEKKAL VEEDU, MUNNAMKUTTY, KILIKOLLUR. (5TH PETITIONER IS DELETED FROM THE ARRAY OF PARTIES AS PER ORDER DT.31-3-2009 IN CRL.M.A.NO.1860/09 IN CRL.M.C.NO.727/09) BY ADV. MR.V.V.RAJA MR.M.T.SURESHKUMAR RESPONDENTS/COMPLAINANT: ---------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ARIFA, AGED 46 YEARS, D/O. AISHA UMMAL, SHAMALAMANZIL, KILIKOLUR CHERI, KILIKOLUR VILLAGE. R1 BY PUBLIC PROSECUTOR MR.GIKKU JACOB R2 BY ADV. MR.R.SATISH KUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 727 of 2009 - A ================== Dated this the 26th day of May, 2009. O R D E R Petitioners are accused Nos.1 to 4 in C.C.No.820/2005 on the file of Judicial First Class Magistrate Court-I, Kollam. 1st petitioner is the widow and other petitioners are children of Sundaran, who admittedly died on 4-10-2001 in a train accident. Contention is that Sundaran had obtained a loan of Rs.75,000/- and issued a cheque dated 15-3-2002 drawn in his account maintained in Catholic Syrian Bank, Kilikolur Branch and at the time of obtaining the loan he had an extent of 6 ½ cents of property comprising a building and after the death of Sundaran petitioners promised to repay that amount and requested 2nd respondent not to proceed with the cheque and later they entered into an agreement to alienate the property in favour of one of their relatives. Annexure 1 complaint was filed before Judicial First Class Magistrate Court-I alleging that an offence under Section 420 read with Section 34 of Indian Penal Code was Crl.M.C.No.727/2009 -2- committed. Magistrate forwarded the complaint under Section 156(3) of Code of Criminal Procedure, based on which Annexure 2 FIR was prepared and crime was registered. After investigation, Annexure 3 refer report was filed. 2nd respondent thereafter filed Annexure 4 protest complaint reiterating the allegations in Annexure 1 complaint and contending that petitioners committed the offence under Section 420 read with Section 34 of Indian Penal Code. Learned Magistrate after recording sworn statement of 2nd respondent and one witness, took cognizance of the offence. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure 4 complaint and C.C.No.820/2005 taken cognizance on Annexure 4 complaint and all further proceedings. 2. Learned Counsel appearing for petitioners, learned Counsel appearing for 2nd respondent and learned Public Prosecutor were heard. Crl.M.C.No.727/2009 -3- 3. Even if Annexure 4 complaint as such is accepted in its entirety, ingredients of an offence under Section 420 of Indian Penal Code is not made out. The case of 2nd respondent was husband of 1st petitioner borrowed Rs.75,000/- and at that time he had 6 ½ cents of property and towards repayment of the amount Sundaran had issued a cheque dated 15-3-2002 drawn in his account. It is also admitted case that Sundaran died on 4-10-2001. Therefore, 2nd respondent could not have encashed the cheque allegedly issued by Sundaran. What is contended in Annexure 4 complaint is that petitioners promised to repay the amount obtained by Sundaran within a period of three months and with an intention to cheat they entered into an agreement to sell the property in favour of their close relative and therefore the offence under Section 420 of Indian Penal Code is committed. For attracting the offence under Section 420, ingredients of the offence under Section 415 of Indian Penal Code is to be established. What is to be established is that petitioners with a dishonest intention to Crl.M.C.No.727/2009 -4- cheat induced 2nd respondent to part with Rs.75,000/- as alleged and thereby committed the offence. 2nd respondent has no case that petitioners made any representation, much less with any dishonest intention when Sundaran borrowed the amount on 20-9-2001 or when he allegedly parted with money or issued the cheque. What was contended is that in violation of the promise to repay the amount, they have entered into an agreement to sell their property inherited from Sundaran. Even if they entered into an agreement to sell the property, it will not constitute offence under Section 420 of Indian Penal Code. Therefore even if the case in Annexure 4 complaint is accepted, no ingredients of the offence is made out and therefore the complaint is only an abuse of the process of the Court. Petition is allowed. Annexure 4 complaint and proceedings in C.C.No.820/2005 taken pursuant to Annexure 4 is quashed. M.SASIDHARAN NAMBIAR JUDGE dkr