IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 Crl.MC.No. 2345 of 2005(C) -------------------------------------- PETITIONERS/ACCUSED: ---------------------------------- 1. M.V.SARASAMMA, AGED 50 YEARS, W/O.LATE V.L.RAMACHANDRAN PILLAI, VAZHUVELIL HOUSE, ERAMALLIKKARA MURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK. 2. V.R.SREELEKHA, D/O.LATE V.L.RAMACHANDRAN PILLAI, DO. 3. SREEJITH, S/O.LATE V.L.RAMACHANDRAN PILLAI, DO. 4. SREERAJ, DO. MINOR REPRESENTED BY HIS MOTHER IST PETITIONER. BY ADV. SRI.S.JAYAKRISHNAN RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------- 1. CHARLEY ABRAHAM, PRESIDENT, UMAYATTUKARA SERVICE CO-OPERATIVE BANK LTD., CHENGANNUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.G.ARUN FOR R1 R2 BY PUBLIC PROSECUTOR SRI.P.RAVINDRABABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.Gopinathan, J. ================================== Crl.M.C.No.2345 of 2005 ================================== Dated this the 13th day of February, 2009. ORDER Petitioners are the widow and children of late V.L.Ramachandran Pillai, who was employed as an Attender in the first respondent bank. Late Ramachandran Pillai, while working in the bank, had availed loans from the bank and without discharging the liabilities, he committed suicide on 24-3-2000. It is alleged that the liabilities amount to Rs.7,11,973/- and the petitioners herein executed an agreement in favour of the bank whereby it was stated that they are amenable to the first respondent realising the entire due amount from the properties of the petitioners. Alleging that the petitioners in breach of the agreement, executed two sale deeds, as Document Nos.2670 and 2671 of 2000 of the SRO, Chengannur in respect of their properties and that the sale deeds were executed with intent to deceive and to have wrongful loss to Crl.M.C.2345/05 -:2:- the first respondent and thus the appellants committed offence punishable under Section 420 read with 34 I.P.C., a complaint was filed before the Judicial Magistrate of the First Class-I, Chengannur. The learned Magistrate forwarded the same to the Station House Officer, Chengannur under Section 156(3) of the Cr.P.C. The Sub Inspector of Police, Chengannur registered a case as Crime No.60 of 2000 against the petitioners for offence punishable under Section 420 read with 34 I.P.C. Annexure-A1 is the FIR and the complaint thereon. The police, after investigation, filed Annexure A2 charge-sheet against the petitioners alleging offence under Section 420 read with 34 I.P.C., the cognizance of which was taken by the learned Magistrate as endorsed over Annexure-A2 charge sheet. Alleging that no offence was committed by the petitioners and that the agreement executed by them are not enforceable and that no offence under Section 420 read with 34 IPC or any other provision Crl.M.C.2345/05 -:3:- of the IPC was committed and that the proceedings were initiated maliciously and with ulterior motives for wreaking vengeance against the children of late Ramachandran Pillai, the petitioners by this petition seek an order to quash Annexure-A2 charge-sheet in exercise of the powers conferred under Section 482 of the Code of Criminal Procedure. 2. On behalf of the first respondent, the President filed a counter affidavit affirming that late Ramachandran Pillai, who was an Attender in the bank, had availed loans and the total amount due from him was Rs.7,11,973/- and that by letter dated 7-12-1999, he had assured that the amount would be remitted within 30 days and in the event of default, he would be abided by any disciplinary action. Annexure-R1(a) is the letter. Since he failed to remit the amount, a show cause notice was issued on 11-1-2000 preceding the disciplinary action and he committed suicide on 24-3-2000 and Crl.M.C.2345/05 -:4:- steps were initiated for filing arbitration proceedings and on knowing the movement of the first respondent, the petitioners, on 29-4-2000, executed Annexure-R1(b) agreement agreeing to remit the amount and the petitioners had sufficient means to clear off the liabilities and that though awards were obtained against the petitioners in Arbitration Proceedings Nos.50, 51, 52, 53 and 61 of 2000, there occurred delay in execution of the same and that without caring to co-operate for the early disposal of the case as directed by this Court by judgment dated 12-2-2004, by Annexure-R1 (c) judgment in WP(C)No.2633 of 2001, this petition was moved and prayed for dismissal of the petition. 3. Learned counsel for the petitioners and the respondents were heard. 4. A perusal of Annexure.R1(b) would show that the fourth petitioner herein was aged only 13 years on the date of execution of the agreement. The alleged cheating is the execution of the sale Crl.M.C.2345/05 -:5:- deed inspite of the undertaking given by the petitioners of which the fourth petitioner is a minor. 5. Section 415 of the I.P.C. defines cheating. A reading of Section 415 of the I.P.C. would be relevant. It reads as follows:- “Cheating.-Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Crl.M.C.2345/05 -:6:- 6. On a repeated reading of Section 415 along with Annexure-A2 charge-sheet, I fail to find out that any of the ingredients to commit offence of cheating is disclosed. There is nothing to show that there was any inducement and the first respondent had delivered any property or did any thing or omitted to do anything if he were not so deceived, and which act or omission caused or is likely to cause any damage or harm to the first respondent in body, mind, reputation or property. 7. According to the learned counsel for the petitioners, to wipe out other liabilities, petitioners had to dispose their properties by the two documents mentioned and it was not a cheating under Section 415 of the I.P.C. Much less any pffence can be alleged against the minor over the so-called undertaking even if any made by the first petitioner who is the mother. If the age of the fourth petitioner in Annexure.R1(b)is taken into account,on the date of the alleged committal of the Crl.M.C.2345/05 -:7:- crime, the fourth petitioner is a juvenile and he is not liable to be prosecuted along with the other petitioners. There is no sort of inducement much less with any intention to deceive in executing a sale deed after having the petitioners executed the agreement expressing that they are amenable for realization of the dues of late Ramachandran Pillai from their properties. The right of alienation can, in no way, be hindered by a document like Annexure R1(b). If any sale deed is executed in violation of the agreement the first respondent can resort to civil remedies. The first respondent is entitled to realize the dues only from the properties of the defaulter or from the legal heirs only to the extent to which the legal heirs succeeded to the estate of the deceased. The execution of the document in respect of the properties belonging to the petitioners without discharging the liabilities of late Ramachandran Pillai by the petitioners who are the widow and Crl.M.C.2345/05 -:8:- children would, in no way, amount to the cheating as defined in Section 415 of the IPC. If the properties alienated belonged to the defaulter, first respondent can take steps for either setting aside sale or for realization of dues after ignoring the sale. 8. Learned Public Prosecutor fairly conceded that there is no material to prosecute the petitioners for offence under Section 420 read with 34 IPC or for any penal provision. In the circumstances, I find that the prosecution of the petitioners by Annexure-A2 charge-sheet is an abuse of process of law. Annexure A2 charge sheet is liable to be quashed. Hence, Annexure-A2 charge sheet is hereby quashed in exercise of powers under Section 482 of the Cr.P.C. sl. P.S.Gopinathan, Judge.