IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.Rev.Pet.No. 849 of 2008() ----------------------------- AGAINST THE ORDER DATED 17/01/2008 IN CRMP.3769/07 IN CC.1055/2006 of JUDL. MAGISTRATE OF FIRST CLASS i, KOTTAYAM .................... PETITIONER(S): PETITIONER/ACCUSED: ----------------------------------------------------------- MUHAMMED ASHRAF, S/O.ASSINAR, LINK HEIGHTS, LINK HEIGHTS, (R.NO.4/B), ELAMKULAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): STATE AND DEFACTO COMPLAINANT: -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS DIRECTOR OF PROSECUTIONS, HIGH COURT OF KERALA ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, PAMBADY. 3. SIBY JAMES, MANAGER, DALIA TOURIST HOME, PAMPADY. BY PUBLIC PROSECUTOR SRI. KAMAPPU – R1 & R2 ADV. SRI.JOHNSON MANAYANI FOR R3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 849 OF 2008 ------------------------------------------ Dated this the 20th day of October, 2008 O R D E R The question for consideration is whether in the absence of a specific case that at the time when the money was delivered, there was an inducement with an intention to cheat on the part of the accused, an offence under section 420 of Indian Penal Code is attracted. Second respondent lodged a complaint before Judicial First Class Magistrate, Kottayam alleging that petitioner committed an offence under section 420 of Indian Penal Code. The complaint was forwarded to the police for investigation under section 156(3) of Code of Criminal Procedure. After investigation, a final report was filed under section 173 of Code. It was taken cognizance by the learned Magistrate as C.C. 1055 of 2006. Petitioner filed Crl.M.P.3769 of 2007 for an order of discharge under section 239 of Cr.P.C. contending that ingredients of an offence under section 420 of IPC is not made out. Learned Magistrate as per the impugned order dated 17.1.2007 dismissed the petition. It is challenged in this revision petition filed under section 397 read with section 401 of Cr.P.C. CRRP 849/08 2 2. Learned counsel appearing for petitioner pointed out that neither in the original complaint which was forwarded to the police, based on which police investigated the case nor in any of the statements recorded by the police under section 161 of Cr.P.C., which are part of the final report filed under section 173 of Cr.P.C. there is an allegation that there was inducement at the time when second respondent paid Rs.7,20,000/- for getting dealership of imported cement or that petitioner had an intention to cheat and therefore no offence under section 420 of IPC is made out and Magistrate should have discharged the petitioner under section 239 of Cr.P.C. 3. Learned counsel appearing for the second respondent argued that petitioner issued a cheque drawn in his account which was closed at that time, making him believe that he can present the cheque and encash the same and it was on that promise second respondent was made to part with Rs.7,20,000/- and therefore an offence under section 420 of Indian Penal Code is made out and what remains is only matter for evidence and therefore without permitting the second respondent to adduce evidence, petitioner cannot be discharged as sought for. 4. Learned counsel appearing for petitioner relied on CRRP 849/08 3 the decision of this Court in Chary v. Martin (1982 KLT 427), Muraleedharan v. Vijayakumar (2006 (4) KLT 342), and decision of the High Court of Punjab and Haryana in Rama Gupta v. Bakeman's Home Products (1992 (1) KLT 765 and the Apex Court in Veer Prakash Sharma v. Anil Kumar Agarwal and Another (2007 (3) KHC 702). Learned counsel also made available copies of the complaint and the statements recorded by the police. 5. Section 239 of Code of Criminal Procedure provides that if upon considering the police report and the documents sent with it under section 173 and making such examination, if any, as the Magistrate thinks necessary and after giving the prosecution and accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused after recording the reason for so doing. Section 240 provides that if, upon such consideration and examination, the Magistrate is of the opinion that there is ground for presuming that accused has committed an offence triable under Chapter XIX of the Code, which the Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame a charge in writing CRRP 849/08 4 against the accused. Therefore if the materials before the learned Magistrate stand unrebutted, and with that materials the ingredients of the offence is not attracted, it is a fit case for discharge under section 239 of the Code. The question is whether the materials available before the learned Magistrate at that time disclose the ingredients of an offence under section 420 of Indian Penal Code. To constitute an offence under section 420 of Indian Penal Code, it is mandatory that ingredients of cheating as provided under section 415 is established. To constitute an offence under section 415 there should be an intentional inducement, whereunder the complainant was made to part with money or deliver any property. That inducement must be with an intention to cheat. As rightly pointed out by the learned counsel appearing for the petitioner, in the compliant which was forwarded to the police under section 153 of Cr.P.C. there was no allegation that at the time when petitioner was made to part with Rs.7,20,000/- there was either any inducement or a case that there was an intention to cheat. What was contended was that petitioner promised to make him a distributor of imported cement and obtained Rs.7,20,000/- and as promised he was not made a distributor CRRP 849/08 5 and therefore petitioner agreed to pay that amount and towards its repayment issued a cheque and when it was presented for encashment, it was found that the cheque was issued on an account which was closed. Case is that thus second respondent was cheated. There is no statement by the second respondent or any other witness that there was an inducement with an intention to cheat at that time when the money was parted with. Even if the statements recorded and the averments in the complaint is accepted, case is only that by issuing a cheque from an account which was closed, second respondent cheated him. It is insufficient to constitute an offence under section 420 of IPC. Therefore learned Magistrate was not justified in not discharging the petitioner under section 239 of Cr.P.C. as the ingredients of the offence under section 320 is not made out on the materials, even if they stand unrebutted. Revision is allowed. The impugned order is set aside. Petitioner is discharged under section 239 of Code of Criminal Procedure. M. SASIDHARAN NAMBIAR, JUDGE Okb/-