In order to hold a person guilty of cheating, the intention of a person must be dishonest and there must be mens rea. : Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY THE 9TH DAY OF FEBRUARY 2022 20TH MAGHA 1943 AGAINST CC No.259 2019 OF JUDICIAL MAGISTRATE OF FIRST CRL.MC NO. 4863 OF 2019 CLASS III TRIVANDRUM PETITIONERS ACCUSED Nos. 1 TO 3 AGED 48 YEARS S O. SRI. R KRISHNA IYER NO.116 GEETHAM SANKAR NAGAR NEERAMAN KARA KAIMANAM P.O. THIRUVANANTHAPURAM DISTRAIT 695 040 AGED 24 YEARS S O. SHAHUL HAMEED T.C. 48 319 A MITHRA NAGAR HOUSE NO.71 PARITHIKUZHI POONTHURA P.O. THIRUVANANTHAPURAM DISTRICT 695 026 AGED 31 YEARS S O. A SUDHAKARAN NAIR T.C. 79 2296 THIRUVONAM ARA 40 CHAKKAI KARIKKAKOM P.O. THIRUVANANTHAPURAM DISTRICT 695 021 BY ADV. SRI.RAJESH P.NAIR RESPONDENTS STATE COMPLAINANT & DE FACTO COMPLAINANT STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM KOCHI 682 031 THE DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS THIRUVANANTHAPURAM 695 004 THE SUB INSPECTOR OF POLICE THAMPANOOR POLICE STATION THIRUVANANTHAPURAM DISTRICT 695 014 Crl.M.C No.48619 AGED 32 YEARS S O. MAHADEVAN MS BHAVAN TC 54 699SASTHRI NAGAR NEDUNKAVU NEDUNKAD WARD MANACAUD VILLAGE THIRUVANANTHAPURAM 695 009 BY ADVS. SMT.SEENA CHANDRAN PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.02.2022 THE COURT ON 09.02.2022 PASSED THE FOLLOWING: Crl.M.C No.48619 SOPHY THOMAS J. C.R Crl.M.C No.48619 Dated this the 9th day of February 2022 O R D E R This petition has been filed by accused Nos.1 to 3 in Crime No.14218 of Thampanoor Police Station for quashing the proceedings in C.C No.2519 on the files of Judicial First Class Magistrate Court III Thiruvananthapuram invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C. 2. The allegation against the petitioners is that they being the Manager and employees of Anderson Diagnostics and Labs which is running without any Municipal licence fraudulently collected the blood samples of the de facto complainant and his wife and issued a faulty result and when the de facto complainant questioned them the 1st accused criminally intimidated him. Thus they are alleged to have committed the offences punishable under Sections 420 506 read with Section 34 of IPC and Section 442 Crl.M.C No.48619 read with Section 543 of the Kerala Municipal Act. 3. According to the petitioners they are the employees of the Thiruvananthapuram Branch of Anderson Diagnostics and Labs having its registered office at Chennai. The doctor who was treating the de facto complainant and his wife for infertility referred them for blood test and the 2nd accused collected blood sample and sent it for test to the Chennai Lab. Out of the five test results one was found to be reactive and it was duly informed to the de facto complainant. The de facto complainant collected the test result on 25.08.2018 and as instructed by the petitioners and the doctor concerned a confirmatory test was conducted in another lab. In that test the result showed non reactive. Due to that fact the de facto complainant manhandled the petitioners on 31.08.2018 and demanded compensation for the mistake in the test result. Since they were not amenable after a delay of about four weeks he lodged a complaint before the Thampanoor Police Station on the basis of which a crime was registered and investigated and finally final report was filed against the petitioners for the offences mentioned above. Crl.M.C No.48619 4. According to the petitioners an offence under Section 420 of IPC will not be attracted as there was no fraudulent or dishonest intention on the part of the petitioners to deceive the de facto complainant. Since the demand for compensation was not heeded to by the petitioners the de facto complainant lodged a false complaint against them. The owner of the Lab or the Doctors who conducted the blood investigation were not arrayed as accused. The petitioners are only employees of the Thiruvananthapuram branch of Anderson Lab based at Chennai They have nothing to do with the blood investigation result issued by the Lab. They had no role other than collecting the sample and sending the same to the Lab at Chennai for the purpose of investigation by the Doctors there. The offence under Section 506 IPC and also under Section 442 read with Section 543 of Kerala Municipal Act will not be attracted against the petitioners. 5. Learned counsel for the de facto complainant vehemently opposed this petition saying that the Anderson Lab at Thiruvananthapuram was not having proper licence and it was functioning unauthorisedly without employing qualified staff and Crl.M.C No.48619 they induced the de facto complainant and his wife to give their blood sample after collecting fees for the same and issued a test result stating that the de facto complainant was found reactive to Hepatitis B causing so much of embarrassment and unnecessary treatment for the same and thus the petitioners cheated him. 6. Learned Public Prosecutor also opposed the petition stating that the petitioners had no authority to run the Lab and they were not qualified to collect blood sample and that is why the result was incorrect. So according to him an offence under Section 420 of IPC will be attracted. 7. Now the question to be considered is whether issuance of a faulty test result from an accredited Medical Laboratory will amount to cheating 8. The petitioners produced Annexure A1 Certificate of Incorporation to show that Anderson Diagnostic Services Pvt. Ltd. Chennai was incorporated under the Companies Act 1956 Annexure A2 is a copy of the Certificate of Accreditation issued to Anderson Diagnostics and Labs in the field of medical testing Annexure A5 is a copy of the appointment letter issued by Crl.M.C No.48619 Anderson Diagnostics and Labs to the 1st accused as its Divisional Manager. Annexure A3 is a copy of the certificate of BSS Diploma in Medical Laboratory Technician Course issued to the 2nd accused from the Board of Examinations. Annexure A4 is a copy of the Diploma certificate in General Nursing and Midwifery issued to the 3rd accused and Annexure A6 is a copy of the appointment letter issued by Anderson Diagnostics and Labs to the 3rd accused. So according to the petitioners Anderson Diagnostics and Labs is an accredited Lab in the filed of medical testing and the petitioners are its qualified employees 9. The de facto complainant and his wife were undergoing infertility treatment in W&C Hospital Thycaud and as directed by the Doctor for blood test the 2nd accused collected their blood sample from the infertility clinic itself as he introduced to them as a hospital staff and he assured them that the test result will be ready by 23.08.2018. On 23.08.2018 the de facto complainant received a phone call saying that he was found reactive for Hepatitis B and directed him to collect the test result immediately and to take follow up treatment. But on doing confirmatory test in Crl.M.C No.48619 DDRC and Rajiv Gandhi Centre for Biotechnology his blood result was found non reactive. So according to the de facto complainant the petitioners cheated them 10. Cheating is defined under Section 415 of IPC. The ingredients to constitute an offence of cheating are as follows there should be fraudulent or dishonest inducement of a person by deceiving him The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived Thus a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating 11. Now let us examine the facts of this case keeping in mind the relevant ingredients to constitute an offence under Section 420 of IPC. 12. The de facto complainant has no case that the petitioners Crl.M.C No.48619 induced him to give blood for conducting the test and intentionally issued a faulty result in order to cheat him. Even according to the de facto complainant there were five test results out of which one was found faulty. Annexure A7 series shows the test results of the de facto complainant issued from Anderson Diagnostics and Labs. Annexure A7 4 is the test result for HbsAg Immunochromatography) which was found reactive. In the comment portion of that report it was stated that “the test was Reactive. Immunochromotography is a screening method only Kindly correlate results clinically. It is also suggested to confirm the test with more specific tests such as ELISA and also with other Hepatitis B viral markers”. The de facto complainant himself admitted that on getting the test result on 28.03.2018 itself he was asked to confirm the same to take follow up treatment. So we cannot say that the petitioners had an intention to cheat the de facto complainant at the time of collecting blood sample or at the time of issuing the test result. If at all a faulty result was issued after conducting blood test of the de facto complainant the test was done by Anderson Lab at Chennai and the employees who Crl.M.C No.48619 only collected and sent the sample to Chennai cannot be held liable for the test result. The Lab is not made an accused in the final report. 13. To bring home the offence of cheating it must be shown that at the time of representation being made it was not only false but that the person who made such false representation knew that it was false and with that knowledge the accused made such representation and thereby induced the party deceived to deliver the property. 14. In the offence of cheating there are two elements. deception and dishonest inducement to do or omit to do something. Mere dishonesty is not a criminal offence. Moreover to establish the offence of cheating the complainant would have to show not only that he was induced to do or omit to do a certain act but that this induced omission on his part caused or was likely to cause him some harm or damage in body mind reputation or property which are presumed to be the four cardinal assets of humanity. (Chidambaram Chettiar vs Shanmugham AIR 1938 Crl.M.C No.48619 15. To constitute cheating the concept of deception must exist from the very start of the transaction. In order to hold a person guilty of cheating the intention of a person must be dishonest and there must be mens rea. It has to be shown that his intention was dishonest at time of making a promise. Such intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. Fraud is proved when it is shown that a false representation has been made knowingly or without belief in its truth or recklessly without caring whether it be true or 16. In the case in hand no materials are available to find that the petitioners collected the blood sample with an intention of cheating and subsequently issued an incorrect test result with a mens rea of cheating him. The FI statement of the de facto complainant is to the effect that a false result was given by the petitioners after conducting his blood test. As already stated out of five only one test result is now challenged by the de facto complainant. Annexure A7 4 clearly says that it was only a screening method and so it has to be correlated clinically and it Crl.M.C No.48619 was suggested to confirm the test with more specific tests Moreover as soon as the test result showing reactive was obtained the de facto complainant was informed by the petitioners to conduct confirmatory tests and on doing the same he was found non reactive. There is nothing to show that he had undertaken any treatment for Hepatitis B on the basis the faulty result. So an element of cheating was not there while collecting the blood sample or while issuing the test result. 17. Regarding the offence alleged under Section 506 of IPC according to the de facto complainant when he questioned the 1st accused regarding the faulty result he threatened him and his wife and thus he criminally intimidated them. It is a matter to be enquired into by taking evidence. Like that the allegation of want of licence under the Kerala Municipal Act also has to be enquired into during trial. So the petitioners have to face the trial for the offences alleged under Section 506 IPC and Section 442 read with Section 543 of the Kerala Municipal Act. Since no trace of cheating could be found out in collecting the blood sample or in issuing the test result the Crl.M.C could be allowed in part quashing the Crl.M.C No.48619 proceedings against the petitioners under Section 420 of IPC. In the result the proceedings against the petitioners for the offence punishable under Section 420 of IPC in C.C No.2519 pending in the Court of Judicial First Class Magistrate III Thiruvananthapuram is hereby quashed and the case shall be continued for the offences punishable under Section 506 of IPC and Section 442 read with Section 543 of Kerala Municipal Act as per the charge sheet and it shall be disposed of within a period of six months from today in accordance with law on its merits. This Crl.M.C is allowed in part as above Sd SOPHY THOMAS Crl.M.C No.48619 APPENDIX OF CRL.MC 4863 2019 TRUE COPY OF THE CERTIFICATE OF INCORPORATING GIVEN BY THE REGISTRAR OF COMPANIES CHENNAI TO ANDERSON DIAGNOSTICS AND LABS TRUE COPY OF THE CERTIFICATE OF ACCREDITATION ISSUED BY THE NABL DATED TRUE COPY OF THE M.L.T CERTIFICATE SECURED BY THE 2ND PETITIONER HEREIN TRUE COPY OF THE CERTIFICATE ISSUED BY THE SCHOOL OF NURSING S.U.T. THIRUVANANTHAPURAM TO THE 3RD PETITIONER TRUE COPY OF THE APPOINTMENT LETTER ISSUED BY THE SAID LAB TO THE 1ST PETITIONER DATED 27.3.2017 TRUE COPY OF THE APPOINTMENT LETTER ISSUED BY THE SAID LAB TO THE 3RD PETITIONER DATED 6.11.2017 TRUE COPY OF THE BILL ISSUED FROM ANDERSON DIAGNOSTICS AND LABS TO THE DE FACTO COMPLAINT CERTIFIED COPY OF THE FINAL REPORT IN C.C. NO. 259 2019 IN CRIME NO 1424 2018 OF THAMPANOOR POLICE STATION Crl.M.C No.48619 TRUE COPY OF THE FIRST INFORMATION STATEMENT OF DE FACTO COMPLAINANT IN CRIME No.1424 2018 OF THAMPANOOR POLICE RESPONDENTS ANNEXURES: NIL P.S to Judge

Summary:  In order to hold a person accountable for the offence of cheating, it is necessary that the person was deceiving from the very beginning and had an intention to cheat. It is necessary to show that the intention while making the promise was dishonest. Mens rea cannot be proven by the mere fact that a promise could not be fulfilled. This was held by Justice Sophy Thomas in the matters between Sundareswaran K. &amp; Others v State of Kerala and another in CRL.MC NO. 4863 OF 2019 decided on 9th Febraury,2022. The petition is filed by three accused with  a pleading to quash the proceedings of the Judicial First-Class Magistrate Court, Thiruvananthapuram. The petitioners are accused of running am unlicensed lab and then cheating the respondents and are therefore charged under Section 420, 502 read with Section 32 of IPC, and Section 442 read with Section 543 of the Kerala Municipal Act. The respondents have stated that the accused collective samples of his wife and then issued a faulty result and also criminally intimated him. The petitioners have submitted that an offence under Section 420 has not been committed since there was no fraudulent intention on part of petitioners to deceive the complainant. In fact, the petitioners had clearly asked the complainant to get the test verified. Moreover, they has no role in the process  other than collecting samples. To this, the respondents submitted that the clinic was not working under a proper license and the respondent had to face a lot of embarrassment due to the test results, which later turned out to be false. Therefore, he was cheated on by the petitioners. After observing the laws and the facts of the present case, the court stated that ‘to bring home the offence of cheating, intention must be established.’ In the present case, no facts and circumstances have stated that the accused have intended to cheat. Following the precedent set out in Chidambaram Chettiar vs Shanmugham AIR 1938 Mad 129, the court stated that four cardinal assets of humanity-body, mind, reputation and property have not been harmed. For the offence under Section 506, the evidences must be examined. The court ruled that there has been no trace of cheating and thus, the offence under Section 420 is not attracted. Quashing the proceedings under Section 420, the court ordered the proceedings under other sections to be continued. Click here to view the judgement. Reviewed by Namisha Choudhary.