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Radhakrishnan @ Radhakrishna … vs The S.I. Of Police on 20 May, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941

Crl.MC.No.4661 of 2017

CRIME NO. 900/2017 OF Pandalam Police Station ,
Pathanamthitta

PETITIONER/ACCUSED:

RADHAKRISHNAN @ RADHAKRISHNA PILLAI
AGED 58 YEARS,S/O.JANARDHANAN PILLAI,PULARI
VEEDU,PANDALAM VILLAGE,ADOOR TALUK,
PATHANAMNTHITTA DISTRICT.

BY ADV. SRI.V.SETHUNATH

RESPONDENTS/COMPLAINANT/STATE:

1 THE S.I. OF POLICE, PANDALAM POLICE STATION
PATHANAMTHITTA DIST.PIN-689501.

2 THE DISTRICT POLICE CHIEF
PATHANAMTHITTA,PIN:689645.

3 GRACY JACOB
AGED 437 YEARS, W/O.LATE JACOB GEORGE, MOOLAYIL
HOUSE,T.C.NO.10/1120,NALANCHIRA.P.O,KUDAPPANAKU
NNU VILLAGE,THIRUVANANTHAPURAM DISTRICT PIN-
695015,(DEFACTO COMPLAINANT).

4 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA,ERNAKULAM,PIN-682031.

BY ADVS.
SRI.S.ARAVIND
SRI.K.SASIKUMAR
PUBLIC PROSECUTOR SMT.K.K.SHEEBA

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
09.04.2019, THE COURT ON 20.05.2019 PASSED THE FOLLOWING:
Crl.M.C.No.4661/2017
2

R.NARAYANA PISHARADI, J
************************
Crl.M.C.No.4661 of 2017
——————————————-
Dated this the 20th day of May, 2019

ORDER

The petitioner is the sole accused in the case registered as

Crime No.900/2017 of the Pandalam police station under

Sections 406, Section420 and Section506 of the Indian Penal Code. The

petitioner seeks to quash the proceedings initiated against him,

by invoking the power of this Court under Section 482 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the

Code’).

2. The case against the petitioner is registered on the

basis of the first information statement given to the police by the

third respondent. The material averments in that statement are

the following: The husband of the third respondent died in the

year 2013. He had obtained a loan of Rs.65,000/- from the

petitioner in the year 2004 by giving his property having an
Crl.M.C.No.4661/2017
3

extent of five cents with the house therein as security. There

was an agreement between the petitioner and the husband of the

third respondent that on repayment of the amount of

Rs.65,000/-, the aforesaid property shall be given back by the

petitioner. The husband of the third respondent repaid the

amount of Rs.65,000/- to the petitioner but he did not reconvey

the property to him. The agreement was renewed twice between

them. Though a total amount of Rs.2,10,000/- was paid to the

petitioner by the husband of the third respondent, the property

was not re-assigned in his name. The petitioner has

misappropriated the amount and cheated the third respondent

and her husband. Before the death of her husband, the third

respondent had talked with the petitioner with regard to the

matter. Then, the petitioner threatened her that he would kill her

and her daughter.

3. After completing the investigation of the case, the

police has filed chargesheet against the petitioner (Annexure-9)

for the offences punishable under Sections 406, Section420 and Section506(i)

I.P.C and it has been taken on file by the Court of the Judicial
Crl.M.C.No.4661/2017
4

First Class Magistrate, Adoor as C.C.No.2691/2017.

4. Heard learned counsel for the petitioner and the

learned Public Prosecutor and also the learned counsel for the

third respondent.

5. Annexure-2 is the copy of the sale deed executed by the

husband of the third respondent in favour of the petitioner. It is

dated 07.10.2004. As per this document, the total consideration

paid by the petitioner for the property and the house therein was

not Rs.65,000/- but Rs.1,00,000/-.

6. As per the charge sheet filed against the petitioner, it

was in the year 2004 that the petitioner purchased the property

belonging to the husband of the third respondent for an amount

of Rs.65,000/- on the basis of an agreement that the property

would be reconveyed on repayment of the amount. As per the

charge sheet, on 16.03.2005, the husband of the third

respondent had paid an amount of Rs.10,000/- and on

18.10.2005, a further amount of Rs.2,00,000/- to the petitioner.

The husband of the third respondent died in the year 2013. It is

pertinent to note that till his death in the year 2013, the husband
Crl.M.C.No.4661/2017
5

of the third respondent had not made any complaint against the

petitioner alleging that the petitioner had misappropriated the

property or the amount and cheated him. He had also not filed

any suit against the petitioner seeking any relief in respect of the

property. The third respondent reported the matter to the police

only on 10.04.2017.

7. Dishonest inducement of a person to deliver any property

to any person or to consent that any person shall retain any

property or to do or to omit to do anything is an essential

ingredient of the offence of cheating defined under Section 415

I.P.C which is punishable under Section 420 I.P.C. In the instant

case, there is no allegation in the first information report or the

final report that the petitioner had induced the husband of the

third respondent to do or omit to do any such act. Therefore,

even if the entire case alleged against the petitioner is accepted

as true, an offence punishable under Section 420 I.P.C is not

made out against him.

8. There is distinction between mere breach of contract and

the offence of cheating. Mere breach of contract cannot give rise
Crl.M.C.No.4661/2017
6

to criminal prosecution for cheating unless fraudulent or

dishonest intention is shown right at the beginning of the

transaction. To hold a person guilty of cheating it is necessary to

show that he had fraudulent or dishonest intention at the time of

making the promise. From his mere failure to keep up the

promise subsequently such a culpable intention right at the

beginning, that is, when he made the promise cannot be

presumed.

9. In the instant case, the document executed and

registered by the husband of the third respondent in favour of

the petitioner discloses an outright sale of the property. Even if it

is accepted that the transaction between the petitioner and the

husband of the third respondent was a loan transaction and that

the petitioner had agreed to reconvey the property in the name

of the husband of the third respondent, mere breach of promise

made by the petitioner will not amount to cheating. The position

is the same with regard to the subsequent agreements alleged to

have been executed by the petitioner and the husband of the

third respondent. As noticed earlier, if it was really a case of
Crl.M.C.No.4661/2017
7

cheating, the husband of the third respondent would have taken

legal action against the petitioner when he was alive. The very

fact that he did not take any action against the petitioner till his

death in the year 2013, for a long period of eight years, would

indicate that the prosecution initiated against the petitioner by

the third respondent, nearly four years after the death of her

husband, is without any basis.

10. The offence of criminal breach of trust, which is made

punishable under Section 406 I.P.C, is defined under Section 405

I.P.C. The essential ingredient of the offence defined under

Section 405 I.P.C is dishonest misappropriation, disposal or use

of a property entrusted with a person to the detriment of the

person who entrusted it. It contemplates a transaction where the

person who transfers possession of the property to the accused

still remains the legal owner of the property and the accused has

only the custody of the property to be kept or disposed of by him

for the benefit of the other party. In the instant case, the

property was sold to the petitioner by the husband of the third

respondent by a registered document and the petitioner had
Crl.M.C.No.4661/2017
8

become the absolute owner of the property. Therefore, the

offence of criminal breach of trust, punishable under Section 406

I.P.C, is also not made out against the petitioner.

11. Another allegation against the petitioner is that he

threatened the third respondent and her daughter that he would

kill them. What is stated in the first information statement given

by the third respondent to the police is that, before the death of

her husband, when she asked the petitioner about the matter, he

threatened that he would kill her and her daughter. As noticed

earlier, the husband of the petitioner had died in the year 2013.

The first information statement is given to the police only on

10.04.2017. Moreover, the allegation in the charge sheet filed

against the petitioner is that it was after the death of the

husband of the third respondent that the petitioner threatened

her.

12. Section 503 I.P.C defines the offence of criminal

intimidation. It states that w hoever threatens another with any injury to his
person, reputation or property, or to the person or reputation of any one in whom

that person is interested, with intent to cause alarm to that person, or to cause that

person to do any act which he is not legally bound to do, or to omit to do any act
Crl.M.C.No.4661/2017
9

which that person is legally entitled to do, as the means of avoiding the execution of

such threat, commits criminal intimidation. The aforesaid provision would

indicate that there must be an act of threatening to another

person, of causing an injury to the person, reputation, or

property of the person threatened, or to the person in whom the

threatened person is interested and the threat must be with the

intent to cause alarm to the person threatened or it must be to

do any act which he is not legally bound to do or omit to do an

act which he is legally entitled to do. It is the intention of the

accused that has to be considered in deciding as to whether what

he has stated comes within the meaning of “criminal

intimidation”. The threat must be with intention to cause alarm to

the complainant to cause that person to do or omit to do any act.

Mere expression of any words without any intention to cause

alarm would not be sufficient to bring in the application of this

section. But material has to be placed on record to show that the

intention is to cause alarm to the complainant (SectionSee Manik

Taneja v. State of Karnataka: (2015) 7 SCC 423). The gist

of the offence is the effect which the threat is intended to have
Crl.M.C.No.4661/2017
10

upon mind of the person threatened. It is essential that the

threat made is of a nature and extent to unsettle the mind of the

person on whom it operates and take away from his acts that

element of free voluntary action.

13. In the present case, the first information statement

given to the police by the third respondent does not contain any

averment that the threat allegedly made by the petitioner caused

any alarm to her. From the facts and circumstances of the case, it

appears that there was no intention on the part of the petitioner

to cause alarm in the mind of the third respondent. It follows

that the offence punishable under Section 506(1) I.P.C is also not

made out against the petitioner.

14. The dispute which allegedly existed between the

petitioner and the husband of the third respondent was

essentially of a civil nature. The husband of the third respondent

did not take any legal action against the petitioner till his death

in the year 2013. The petitioner reported the matter to the police

only on 10.04.2017 raising allegations against the petitioner in

connection with the transaction which is essentially of a civil
Crl.M.C.No.4661/2017
11

nature. The offences alleged against the petitioner are not made

out from the allegations in the first information report or the final

report. The chances of ultimate conviction of the petitioner is

bleak and no useful purpose is likely to be served by continuing

the prosecution against him. Continuation of the proceedings

against the petitioner would be an abuse of the process of court.

15. The legal position is well-settled that when a

prosecution at the initial stage is asked to be quashed, the test to

be applied by the court is as to whether the uncontroverted

allegations as made, prima facie, establish the offence. It is also

for the court to take into consideration any special features which

appear in a particular case to consider whether it is expedient

and in the interest of justice to permit the prosecution to

continue. Where, in the opinion of the court, the chances of

ultimate conviction is bleak and no useful purpose is likely to be

served by allowing a criminal prosecution to continue, the court

may quash the proceeding even though it may be at a

preliminary stage (SectionSee Manik Taneja v. State of Karnataka:

(2015) 7 SCC 423).

Crl.M.C.No.4661/2017
12

16. It is a warrant case instituted on police report. True, the

petitioner can file application under Section 239 of the Code for

discharge before the Magistrate concerned. No doubt, the

Magistrate can discharge the accused, if he considers the charge

to be groundless. But that does not mean that the accused

cannot approach this Court under Section 482 of the Code to

have the proceeding against him quashed (SectionSee Pepsi Foods

Limited v. Special Judicial Magistrate: AIR 1998 SC 128).

17. Consequently, the petition is allowed. The proceedings

against the petitioner in C.C.No.2691/2017 on the file of the

Court of the Judicial First Class Magistrate, Adoor, based on

Annexure-1 first information report and Annexure-9 charge

sheet, are hereby quashed.

(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr/15/05/2019
Crl.M.C.No.4661/2017
13

APPENDIX
PETITIONER’S EXHIBITS:

ANNEXURE 1 THE TRUE COPY OF THE F.I.R.IN CRIME
NO.900/2017 OF PANDALAM POLICE STATION

ANNEXURE 2 THE TRUE COPY OF THE SALE DEED
NO.2491/2004 OF PANDALAM S.R.O.

ANNEXURE 3 THE TRUE COPY OF THE PLAINT IN
O.P.N,O.403/2006 ON THE FILE OF THE
FAMILY COURT,THIRUVALLA

ANNEXURE 4 THE TRUE COPY OF THE JUDGMENT OF THE
FAMILY COURT,THIRUVALLA DATED 4.7.2007

ANNEXURE 5 THE TRUE COPY OF THE PLAINT FILED BY
THE DEFACTO COMPLAINANT IN O.S.353 OF
2006 ON THE FILE OF THE MUNSIFF’S
COURT,ADOOR

ANNEXURE 6 THE TRUE COPY OF THE JUDGMENT IN
O.P.NO.1242/2011 ON THE FILE OF THE
FAMILY COURT,THIRUVALLA.

ANNEXURE 7 TRUE COPY OF THE ACKNOWLEDGMENT SLIP
ISSUED BY THE OFFICE OF THE DISTRICT
POLICE CHIEF

ANNEXURE 8 THE TRUE COPY OF THE ORDER OF THIS
COURT IN B.A.3167/2017.

RESPONDENTS’ EXHIBITS:

NIL

TRUE COPY

P.S TO JUDGE

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