Allowed

James Palathingal Anthony v. State of Kerala

Kerala HC3 Sept 2014Crl.MC/1743/2013

Case brief

AI extract

What is this about?

In a quashing petition under Section 482 CrPC, the High Court held that the allegations amounted to a civil dispute over breach of promise rather than cheating. The court found Section 415 IPC ingredients absent and quashed the criminal proceedings as an abuse of process.

What did the court decide?

Final report in Crime No. 893 of 2012 and C.C. No. 6226 of 2012 are quashed; pending interlocutory applications closed.

James Palathingal Anthony Vs State of Kerala — Cheque Dishonour | Kerala HC (2014)

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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 A.HARIPRASAD

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WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936

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Crl.MC.No. 1743 of 2013 ()

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CC 6226/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,IRINJALAKUDA

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PETITIONER(S)/PETITIONER: ACCUSED:

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JAMES PALATHINGAL ANTHONY, AGED 53 YEARS S/O. LATE ANTHONY, PALATHINGAL HOUSE, POTTA P.O. CHALAKKUDY, THRISSUR.

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BY ADV. SRI.A.RAJASIMHAN

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RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT:

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STATE OF KERALA REPRSENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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DAVIS

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S/O. RAPPAYI, KONIKKARA HOUSE, MANAKULANGARA

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KODKARA, THRISSUR.

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R2 BY ADV. SRI.M.R.HARIRAJ R2 BY ADV. SMT.VINEETHA B. R1 BY PUBLIC PROSECUTOR SHRI JUSTIN JACOB

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.08.2014, THE COURT ON 03-09-2014 PASSED THE FOLLOWING:

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Crl.MC.No. 1743 of 2013 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS

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ANNEXURE A1- TRUE COPY OF THE FINAL REPORT IN 6226/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, IRINJALAKKUDA, THRISSUR. ANNEXURE A2- TRUE COPY OF THE PLAINT IN O.S.NO. 81/2012 PENDING BEFORE MUNSIFF COURT, IRINJALAKUDA. ANNEXURE A3- TRUE COPY OF THE AMENDMENT APPLICATION FILED BEFORE MUNSIFF COURT, IRINGALAKKUDA.

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RESPONDENT(S)' EXHIBITS

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ANNEXURE R2(A) TRUE COPY OF LETTER DATED 28.8.2010 GIVEN BY THIS RESPONDENT TO THE PETITIONER

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ANNEXURE R2(B) TRUE COPY OF LETTER NO.LAG/01/2010 DATED 1.9.2010 ISSUED BY THE PETITIONER

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ANNEXURE R2(C) TRUE COPY OF LETTER NO.LAG/02/2010 DATED 2.9.2010

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//TRUE COPY//

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A.HARIPRASAD, J.

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Crl.M.C. No.1743 of 2013

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Dated this the 3^rd day of September, 2014.

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ORDER

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Petition filed under Section 482 of the Code of Criminal

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Procedure.

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Petitioner is the accused in Crime No.893 of 2012 of Kodakara Police Station registered under Section 420 of the Indian Penal Code (in short, “IPC”). Gist of allegations in the final report (Annexure-A1) is as follows: The petitioner on 20.06.2006 issued four cheques and signed an agreement written on stamp paper as security for investment made by the defacto complainant in a company formed by the petitioner. The deal was struck at Sharja, UAE. Thereafter, share of the defacto complainant was transferred to the nominees of the petitioner. At that time, the petitioner promised to pay five lakhs dirhams to the defacto complainant. Out of that, three lakhs dirhams was paid. The balance amount was not paid as promised. Thereby the petitioner has cheated the defacto complainant.

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Heard the learned counsel appearing on both sides.

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Learned counsel for the petitioner submitted that the entire

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story of the prosecution case is false. The defacto complainant filed O.S.No.81 of 2012 before Munsiff's Court, Irinjalakkuda against the

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Crl.MC No.1743/2012 2

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petitioner seeking a declaration that there was no debtor-creditor relationship between the defacto complainant and the petitioner. It is the case of the petitioner that even in that suit, there was no whisper that the petitioner owes any money to the defacto complainant. Subsequently, the said suit was withdrawn. It is also submitted that the petitioner initiated criminal action under Section 138 of the Negotiable Instruments Act, 1881 against the defacto complainant and his wife. As a counter blast, a false crime was caused to be registered by exerting pressure on the Police.

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Per contra, learned counsel for the defacto complainant submitted that the complainant was conducting Blue Pearl Marine Service FZC at Sharja, a ship repairing company. The company was started in the year 2006. The petitioner had invested amounts for and on behalf of the defacto complainant. Thereafter on the advice of the petitioner, the business concern was transferred to three persons. After taking valuation of the assets, it was found that the complainant was entitled to get five lakhs dirhams. To repay that amount was a promise and that promise was breached by the petitioner, by paying only a portion of the amount. It is seen from the case diary produced by the Prosecutor that the Police filed a final report in the matter and material documents produced by the defacto complainant at the time of investigation were returned to him without

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Crl.MC No.1743/2012 3

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producing the same along with the final report. Learned counsel for the petitioner contended that this itself is an indication that the case set up by the complainant is false. After hearing both sides and perusing the records, I am of the view that the ingredients of cheating essentially required under Section 415 IPC are not attracted in this case. Learned counsel for the petitioner relying on V.P.Shrivastava v. Indian Explosives Limited and others ((2010) 10 SCC 361) contended that there is no mention in the complaint that the petitioner entertained a culpable intention right at the time of entering into the agreement to cheat the defacto complainant. Therefore, the prosecution is bad, according to the learned counsel for the petitioner. The decision reported in Augustine v. Omprakash Nanakram (2001 (2) KLT 638) is also pressed into service to contend a proposition that breach of promise to pay the dues cannot be said to be an offence of cheating punishable under Section 420 IPC. Reckoning the entire facts and circumstances, I am of the view that the dispute persisting between the parties is predominantly in the nature of a civil dispute. Hence the prosecution of the petitioner is an abuse of the process of court.

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In the result, the petition is allowed. Annexure-A1 final report in Crime No.893 of 2012 of Kodakara Police Station, pending in

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Crl.MC No.1743/2012

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C.C.No.6226 of 2012 on the file of Judicial First Class Magistrate Court-I, Irinjalakuda is hereby quashed.

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All pending interlocutory applications will stand closed.

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A. HARIPRASAD, JUDGE.

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