IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 Crl.MC.No. 4490 of 2005() ------------------------- CRRP.3/2004 of SESSIONS COURT, KOLLAM CRMP.774/2003 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONER(S): REVISION PETITIONER/COMPLAINANT: ---------------------------------------------------------------------------------- VIMAL KUMAR, KUNNAMATH VEEDU, ULIYAKOVIL, KOLLAM. BY ADV. SRI.P.SIVARAJ RESPONDENT(S): COUNTER PETITIONERS/STATE - ACCUSED: ---------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BAISAL, ST. JUDA COTTAGE, NEAR PATTATHL KAVU, VADAKKEVILA P.O.,KOLLAM. 3. MOHAN DAS, MAHESH BHAVAN, VADAKKEVILA P.O., KOLLAM. R1 BY PUBLIC PROSECUTOR SRI. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.4490 of 2005 -------------------------------------- Dated this the 31st day of May, 2011. ORDER Public Prosecutor takes notice for first respondent. 2. Petitioner is the complainant in Crl.M.P.No.774 of 2003 of the court of learned Chief Judicial Magistrate, Kollam. Learned Chief Judicial Magistrate found no sufficient ground to issue process to respondents 2 and 3 and dismissed the complaint under Section 203 of the Code of Criminal Procedure (for short, “the Code”). That order was confirmed by the learned Sessions Judge, Kollam vide order dated 01.10.2004 in Crl.R.P.No.3 of 2004. In this Criminal Miscellaneous Case the said orders are under challenge. It is contended by learned counsel that the view taken by courts below that there is no sufficient ground to proceed against respondents 2 and 3 is erroneous and placed reliance on the decision in S.W.Palanitkar and others v. State of Bihar and another ((2002) 1 SCC 241) and in particular, the observations in paragraph 15. 3. The case of petitioner is that he had undertaken construction of a building for the second respondent/first accused on an agreement to pay `.500/- per square foot. Petitioner demanded `.96,304/- as cost of construction. But respondents 2 and 3 refused it. It is alleged that respondents 2 and 3 had dishonestly made a representation that they would pay the amount on Crl.MC No.4490/2005 2 completion of work and by non-payment of the amount, cheated petitioner. Petitioner filed Crl.M.P.No.1234 of 2002 before the learned Chief Judicial Magistrate who forwarded the same to the Police for investigation under Section 156(3) of the Code. The Kollam East Police registered Crime No.336 of 2002 and after investigation submitted a refer report stating that second respondent had paid the entire amount due to the petitioner for work done and that petitioner filed the complaint only because second respondent complained that petitioner used low quality materials for the construction. On getting notice of that refer report, petitioner filed Crl.M.P.No.774 of 2003 as protest complaint. On that complaint sworn statement of petitioner was recorded and one witness was examined. Learned Chief Judicial Magistrate found that what is involved is only a civil dispute. That has been confirmed by the learned Sessions Judge in Crl.R.P.No.3 of 2004. 4. I have gone through the orders under challenge. In paragraph 15 of the decision relied by learned counsel it is stated that to issue process on a complaint filed under Section 200 of the Code, what is required is only to ascertain existence of a prima facie case. It is stated that the word 'sufficient ground' used under Section 203 have to be construed to mean satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction. Crl.MC No.4490/2005 3 5. Essentially the dispute in this case is regarding cost of construction payable for the work (allegedly) done by the petitioner on the strength of an agreement between petitioner and second respondent. The refer report is also to be looked into in ascertaining whether petitioner has made out a prima facie case. Investigation conducted by the Police states that second respondent had paid cost of construction due to petitioner but, petitioner preferred the complaint since second respondent made a complaint that petitioner had used low quality materials. Even otherwise, as I stated, the dispute primarily and essentially is regarding liability if any of the second respondent to pay the amount claimed by petitioner by way of cost of construction. That in my view is a civil dispute which has to be settled by the civil court. Merely because the complaint is artistically worded incorporating all the ingredients of cheating as defined in Section 415 of the Indian Penal Code a civil liability cannot be converted into a criminal liability. Courts below have found so. I must also bear in mind that on 19.01.2006 this Court directed that this case be posted after two weeks and thereafter the matter is coming up for hearing for the first time after about five and a half years. I do not find justifiable reason to interfere with the orders under challenge. Criminal Miscellaneous Case is dismissed. THOMAS P.JOSEPH, Judge. cks