Dismissed

Sasidharan v. Karunakaran Pillai

Kerala HC14 Aug 2012Crl.Rev.Pet/1378/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal revision petition challenging a Magistrate's order discharging the accused of Section 420 IPC. The Court held that the discharge was legal because the complainant failed to specifically allege in the complaint or statement that the money was lent with an inducement to cheat, a necessary ingredient for the offence.

What did the court decide?

The criminal revision petition was dismissed as it had no merit.

Sasidharan Vs Karunakaran Pillai — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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TUESDAY, THE 14TH DAY OF AUGUST 2012/23RD SRAVANA 1934

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Crl.Rev.Pet.No. 1378 of 2012 ()

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IN CC.13/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA

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PETITIONER(S)/COMPLAINANT:

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SASIDHARAN, AGED 49 YEARS S/O. NARAYANAN, AGED 49, KODUVIRINJIL VAYALAR VILLAGE AND P.O, CHERTHALA TALUK ALAPPUZHA DISTRICT, PIN - 688 536.

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BY ADVS.DR.V.N.SANKARJEE

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SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.JAYAKRISHNAN.C.H

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RESPONDENT/ACCUSED AND STATE:

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1. KARUNAKARAN PILLAI

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AGED ABOUT 60, PURATHUVELIL, THURAVOOR

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VALAVANGALAM.P.O, CHERTHALA TALUK

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ALAPPUZHA DISTRICT, PIN - 688 532.

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2. THE STATE OF KERALA

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REPRESENTED BY THE PUBLIC PROSECUTOR

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HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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dlk

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C.T. RAVIKUMAR, J.

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Crl. R. P. No. 1378 of 2012

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------------------------------------------

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Dated this the 14^th day of August, 2012

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ORDER

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This revision petition is directed against the order dated 10.04.2012 in C.C. No. 13/2009 of the Court of the Judicial First Class Magistrate - I, Cherthala. The petitioner filed the said case alleging commission of offence under Section 420 of the Indian Penal Code against the first respondent herein. The learned Magistrate examined the complainant and two of his witnesses under Section 244 of the Code of Criminal Procedure as PW1 to PW3. Exhibits P1 to P5 were also marked. Thereupon the question whether the first respondent/accused is entitled to discharge under Section 245(1) of the Cr.P.C. was considered and consequently, discharged him thereunder as per the impugned order. The case of the revision petitioner herein/complainant, in succinct, is as follows:

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On 11.07.2008, the first respondent/accused borrowed an amount of Rs.75,500/- from him. Thereafter, the first respondent, in discharge of the said legally enforceable debt, issued Exhibit P1 cheque dated 18.07.2008. On enquiry he came to know that Exhibit P1 cheque did not belong to the accused

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Crl. R. P. No. 1378 of 2012

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and therefore, he could not encash the cheque. The learned Magistrate considered the allegations in the complaint and also his statement on oath. On such careful consideration it was found that there is absolute absence of any plea in the complaint or also in his deposition that the accused, first respondent had induced him to part with the money by issuing Exhibit P1 cheque. True that the learned Magistrate found that the averments would clearly show that the revision petitioner lent money to the first respondent. It was further found that even assuming that the first respondent suppressed the fact that the cheque was not drawn on an account maintained by him it would not constitute the offence under Section 420 on account of the absolute absence of the plea in the complaint as also in his statement on oath that he was so induced by the first respondent to part with the money at the time of lending money with a view to cheat him. In view of the plethora of decisions on this aspect there cannot be any dispute with respect to the fact that to attract an offence under Section 420 of the IPC, it is incumbent on the complainant to allege specifically in the complaint as also in his statement on oath that he was induced to part with the

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Crl. R. P. No. 1378 of 2012

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money with a view to cheat him, at the very commencement of the transaction. When ingredients so as to attract an offence under Section 420 of the IPC are lacking in the complaint as also in the statement on oath of the complainant there is no purpose for proceeding further with such a complaint. Admittedly, in this case after an enquiry in terms of Section 244 Cr.P.C. the learned Magistrate found that either in his oral deposition or in the complaint the revision petitioner raised such a case. In the circumstances, no penal liability could be attributed and attached on the first respondent. There can be no doubt with respect to the position that one can be prosecuted only if the plea in the complaint and the statement on oath of the complainant carry the ingredients of the alleged offence. In this case, the alleged offence is one under Section 420 of the IPC. As noticed herein before, the very ingredient to attract such an offence is a specific attribution to the effect that there was an inducement to part with the money at the very commencement of the transaction. The impugned order would reveal that the learned Magistrate found that there is no such averments either in the complaint or in his statement on oath. In ground 'L' of the

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Crl. R. P. No. 1378 of 2012

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revision petition it has been contended as hereunder:-

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“The learned erroneously recorded the statement of the petitioner, while the statement of Pw2 is one recorded correctly and in tune with the complaint. The statement delivered by the petitioner was that on 11-07-2008 the 1st respondent received the amount and sued the Ext.P1 then there. The statement that Ext P1 was dated 18-07-2008 has been erroneously recorded as Ext.P1 was issued on 18-7-2008 and based on this erroneous recording of statement the learned magistrate illegally discharged causing sever miscarriage of justice and prejudice to the petitioner.”

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(emphasis added)

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The petitioner, evidently, attempted to convey and raise the contention that the learned Magistrate had erroneously recorded his statement on oath.

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Thus, in short, the endeavour of the revision petitioner is to build a case by contending that such a situation has arisen solely on account of an erroneous recording of his statement by the learned Magistrate. Admittedly, the petitioner had signed the said statement taken on oath after it was read over to him and on understanding the same. In the circumstances, the revision petitioner cannot be heard to contend that the learned Magistrate has erroneously recorded his statement. I am of the considered view that the action on the part of the revision

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Crl. R. P. No. 1378 of 2012

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petitioner in taking up such a contention is highly deprecative. It is only to be discarded especially taking in to account the admitted fact that he had not specifically pleaded in the complaint as well, that he was induced to part with the money with a view to cheat him at the time of lending of the same. There is absolute absence of any ground to proceed further with the case on account of the absence of ingredients in the complaint as also in the statement taken oath, to attract an offence under Section 420 of the IPC. In such circumstances, the contention of the revision petitioner that the impugned order is suffering from error, illegality or impropriety cannot be upheld. There is no merit in this revision petition, it is liable to be dismissed. Accordingly, it is dismissed.

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C.T. RAVIKUMAR, JUDGE

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/True copy/

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P. A. to Judge

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Sasidharan v. Karunakaran Pillai

Case brief

What is this about?

What did the court decide?

Sasidharan v. Karunakaran Pillai

Case brief

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