IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 Crl.Rev.Pet.No. 1561 of 2003() ------------------------------ CC.391/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, HARIPAD .................... PETITIONERS/ACCUSED 1 AND 2 :- ------------------------------------------------- 1. JANU, AGED 60 YEARS, KUNNEL VEETTIL, KARICHAL MURI, VEEYAPURAM VILLAGE. 2. APPU, AGED 32 YEARS, KUNNEL VEETTIL, KARICHAL MURI, VEEYAPURAM VILLAGE. BY ADV. SRI.P.G.THAMPI, SENIOR ADVOCATE SMT.BHAVANA VELAYUDHAN RESPONDENT(S)/COMPLAINANT & STATE :- --------------------------------------------------------------- 1. BABU, AGED 43 YEARS, S/O.PHILIPOSE GEORGE, ATUMALIL PUTHENPURAYIL, VEEYAPURAM MURI, VEEYAPURAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.HARILAL FOR R1 PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt N.K.BALAKRISHNAN, J. -------------------------------- Crl.R.P. No.1561 of 2003 --------------------------------- Dated this the 25th day of August 2011 O R D E R The first respondent filed a complaint against the revision petitioners alleging offence punishable under Sec.420 r/w Sec.34 IPC. PWs.1 to 3 were examined by the learned Magistrate as part of pre-charge evidence. Thereafter the learned Magistrate framed charge against the petitioners under Sec.420 r/w Sec.34 IPC. This revision petition is filed challenging the said order framing charge against them. 2. The learned counsel for the revision petitioners would submit that a reading of the complaint itself would make it clear that there was only a contract between the first respondent and the petitioners herein with regard to the sale of an old house which belonged to the revision petitioners. The consideration for the sale of said house Crl.R.P. No.1561 of 2003 -: 2 :- which was to be demolished, dismantled and removed was Rs.75,000/-. Out of the same, Rs.5,000/- was paid in advance. Subsequently another sum of Rs.35,000/- was paid by the first respondent to the petitioners. When the respondent approached the petitioners again he demanded some more amount. Later the revision petitioners sold the right of demolishing and taking away the articles to another person for a total consideration of Rs.1 lakh. According to the respondent it was done dishonestly to cause wrongful loss to himself and wrongful gain to revision petitioners and thus there is an element of cheating. 3. The learned counsel for the revision petitioners would submit that in the complaint the allegations are actually pertaining to the agreement entered into between the parties which would only give rise to a cause of action for filing a suit for damages if any, and there are no averments in the complaint to the effect that there was any dishonest or fraudulent inducement at the very inception of Crl.R.P. No.1561 of 2003 -: 3 :- the agreement nor is there any specific averment that wrongful loss was caused to the respondent or wrongful gain to the revision petitioners. The petitioners would further contend that pre-charge evidence given by PWs.1 to 3 is also in line with the averments contained in the complaint. In other words, the evidence given by PWs.1 to 3 also does not disclose any element of dishonest intention. It was not stated that the respondent was induced to believe that for the 'house for demolition' would be given to him for Rs.75,000/- and making such inducement money was paid. It was not specifically stated in the complaint that there was an element of dishonest intention at the time of entering into the contract. 4. Sri.Harilal, the learned counsel appearing for the respondent/complainant would submit that even if the allegation discloses a civil dispute also the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. The learned counsel has Crl.R.P. No.1561 of 2003 -: 4 :- relied on the decision in R. Kalyani v. Janak C. Mehta and others [(2009) 1 SCC 516]. Each case has to be considered on its own merits. The averments in the complaint do not disclose the ingredients that are required to satisfy the definition of cheating. What has been stated in the complaint and in the evidence given by PWs.1 to 3 is to the effect that the house was sold for causing it to be dismantled, fixing a consideration of Rs.75,000/- and part of the consideration was received by the vendors but subsequently as against the terms of the agreement it was sold to another person for a consideration of Rs.1 lakh. It was not stated that at the very inception of the agreement there was any dishonest intention. What is stated in the complaint is only to the effect that it was sold for an excess profit causing loss to the complainant. So the averments in the complaint itself would show that no offence could be made out. It is true that at the time of framing charge, the learned Magistrate is not expected to embark upon a roving Crl.R.P. No.1561 of 2003 -: 5 :- enquiry into the pros and cons of the prosecution case but if the required materials are totally absent further proceedings would be an abuse of process and as such this Court would be justified in invoking the revisional powers to stop further proceedings. In view of what has been stated above, this petition is allowed. The charge framed against revision petitioners by the learned Magistrate is set aside. N.K.BALAKRISHNAN, JUDGE. Jvt