IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 Crl.MC.No. 3767 of 2010() ------------------------- FIR NO. 438/2010 OF PATTAMBI POLICE STATION, PALAKKAD ................................ PETITIONERS / ACCUSED 2 AND 3: -------------------------------------------------- 1. C.VENUGOPALAN, S/O.KRISHNA MENON, ADVOCATE, ATTAYIL PALAKKAPARAMBIL HOUSE, P.O.PATTITHARA, PALAKKAD DISTRICT-676121. 2. PUTHUMANA KESAVAN, S/O.KUTTIKRISHNA MENON, DOCUMENT WRITER, MATHILAKAM VEEDU, P.O.MARUTHOOR, PATTAMBI, PALAKKAD DISTRICT-679534. BY ADVS. SRI.T.KRISHNAN UNNI (SR) SRI.P.K.MOHANAN(PALAKKAD) RESPONDENTS / COMPLAINANT, ACCUSED 1 AND 4 & STATE: ----------------------------------------------------------------------------------------- 1. C.K.SAROJINI, D/O.JANAKI AMMA, NALINI NIVAS, MELAKKAM, MANJERI, MALAPPURAM DISTRICT-676 121. 2. M.P.UDAYAVARMAN, S/O.KUNJUKUTTY KOLPAD, ADVOCATE, UDAYAMANDIRAM, P.O.MELE PATTAMBI, PALAKKAD DISTRICT-679 306. 3. VEERAMANI, VEERAMANI TEXTILES, PATTAMBI, PALAKKAD-679303. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.A.K.MADHAVAN UNNI SRI.S.RAMACHANDRAN R4 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3767 OF 2010 =========================== Dated this the 10th day of December,2010 ORDER Petitioners are accused 2 and 3 in Crime 438/2010 of Pattambi Police Station registered for the offence under section 420 read with section 34 of Indian Penal Code under Annexure A1 F.I.R. The F.I.R was registered based on the complaint filed by the first respondent before the Judicial First Class Magistrate Court-I, Pattambi and sent for investigation under section 156(3) of Code of Criminal Procedure. Petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings against the petitioners who are accused 2 and 3 contending that even if the allegations against them in Annexure A1 complaint is accepted, no offence as against them is attracted and therefore continuation of Crl.M.C.3767/2010 2 the proceedings is only an abuse of process of court. 2. Learned counsel appearing for the petitioners, first respondent and learned Public Prosecutor were heard. 3. First respondent instituted O.S.176/2008 and O.S.177/2008 before Munsiff’s Court, Pattambi. Advocate Bhaskaran Nair was appearing for the first respondent in both the suits. In both the suits petitions attachment before judgment, of the moveables of Veeramani Textiles owned by the fourth accused, for realization of the amount of Rs.1,60,000/- claimed in the suit were filed. An order of attachment was passed on 16.12.2008. The case in Annexure A1 complaint is that before the attachment could be effected, on 18.12.2008 as sent by the first accused, the counsel appearing for the fourth accused for the defendants in the suit, first petitioner the junior counsel and second petitioner the document writer along with the fourth accused went to the house of Advocate Crl.M.C.3767/2010 3 Bhaskaran Nair representing that first accused sent them praying that the order of attachment is to be withdrawn promising that Rs.50,000/- will be paid and the balance will be paid within three months. It is alleged that Advocate Bhaskaran Nair contacted the first accused who also assured that payment will be made and thereafter accepting the promise the counsel appearing for the first respondent had withdrawn the applications for attachment. Subsequently defendants did not pay the amount. It is alleged that though first respondent contacted the accused, he refused to pay the amount and represented that he cannot pay the amount and thereby all the accused committed the offence. 4. Learned senior counsel appearing for the petitioners and first respondent and learned Public Prosecutor were heard. 5. To attract an offence under section 420 of Indian Penal Code, there should be materials to show that petitioners induced the first respondent Crl.M.C.3767/2010 4 to part with money or to omit the act, with a dishonest intention to cheat. Even if Annexure A1 complaint is accepted, there is no allegation that there was a dishonest intention on the part of the petitioners to cheat at the inception. The only case is that though petitioners met the counsel appearing for the first respondent before the civil courts and sought to withdraw the attachment promising to pay the balance amount due, after paying Rs.50,000/-, and the amount was not paid. It is the case that the order of attachment would not have been withdrawn but for the promise and the inducement made that it will be paid. It is the case that on the failure to pay the amount as promised, an offence under section 420 of Indian Penal Code is committed. 6. Even if the case as stated in the complaint is accepted, first petitioner who is respectively the junior of the first accused advocate appearing for the defendants and second petitioner a document writer, met Advocate Bhaskaran Nair on the morning Crl.M.C.3767/2010 5 of 18.12.2008 representing that they will pay Rs.50,000/- and the balance will be paid within thirty days. As far as petitioners are concerned, they have no liability to discharge any debt. At best, it could be said that as instructed by the counsel appearing for the fourth accused in the suits, first petitioner junior along with the second petitioner document writer and fourth accused the defendant met the counsel appearing for the first respondent,and represented that the fourth accused would pay the entire amount and Rs.50,000/- will be paid on that day. The question is whether by conveying the willingness or undertaking of the fourth accused, first petitioner junior counsel to the Advocate appearing for the fourth accused and the document writer would be guilty of an offence under section 420 of Indian Penal Code. On the admitted facts, it cannot be said that petitioners made any inducement to the first respondent and persuaded her to withdraw the petition with a dishonest intention. At best it Crl.M.C.3767/2010 6 could be said that petitioners joined with the fourth accused, when they met the counsel appearing for the first respondent and promised to pay the amount within a period. If the fourth accused did not pay the amount as promised, petitioners cannot be prosecuted for the offence under section 420 of Indian Penal Code. In such circumstances, continuation of the proceedings against the petitioners is only an abuse of process of court. To secure the justice it is to be quashed. Petition is allowed. C.C. 438/2010 of Pattambi Police Station against the petitioners accused 2 and 3 registered under Annexure I F.I.R is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006