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
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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
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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
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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