Dismissed

Mohanan v. State of Kerala

Kerala HC20 Jun 2014Crl.MC/2123/2014

Case brief

AI extract

What is this about?

High Court dismissed a criminal petition seeking to set aside the orders dismissing a private complaint for cheating. The Court held that no inducement existed to commit the offense of cheating and the courts below were justified in finding no prima facie case.

What did the court decide?

The criminal miscellaneous case was dismissed; the impugned orders dismissing the complaint and confirming the revision were affirmed.

Mohanan Vs State of Kerala — Cheating and Forgery | 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 K.RAMAKRISHNAN

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FRIDAY, THE 5TH DAY OF JUNE 2014/30TH JYAISHTA, 1936

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Crl.MC.No. 2123 of 2014 ()

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AGAINST THE ORDER IN CRL.R.P. 81/2011 of THE ADDITIONAL SESSIONS JUDGE,PALAKKAD DIVITION AT OTTAPPALM DATED 11-12-2013 AGAINST THE ORDER IN CMP 553/2010 of J.M.F.C., MANNARKAD

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PETITIONER(S):

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MOHANAN,AGED 51 YEARS, S/O.NARAYANAN NAIR, MUNDANCHERY VEEDU, CHIRATTAKKULAM EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK PALAKKAD DISTRICT.

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BY ADV. SRI.P.K.MOHANAN(PALAKKAD)

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RESPONDENT(S):

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31.

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P.RAJESH, AGED 39 YEARS, S/O.ARUMUGHAN ALIAS KUNHUNNI, PALAKKAYIL VEEDU VANIYAMPARA, POTTASSERY, MANNARKKAD TALUK PALAKKAD DISTRICT, PIN 678 551.

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ARUMUGHAN @ KUNHUNNI, AGED 69 YEARS, PALAKKAYIL VEEDU, VANIYAMPARA, POTTASSERY MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN 678 551.

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THANKA, AGED 64 YEARS, PALAKKAYIL VEEDU, VANIYAMPARA, POTTASSERY MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN 678 551.

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R2 -R4 BY ADV. SRI.T.K.SANDEEP BY PUBLIC PROSECUTOR SMT.P.MAYA

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-06-2014, THE COURT ON 20.6.2014 PASSED THE FOLLOWING:

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Crl.MC.No. 2123 of 2014 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS

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ANX.1. TRUE COPY OF THE COMPLAINT DATED 23.2.2010

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ANX.2. TRUE CPY OF THE ORDER OF THE LEARNED JFCM, MANNARKKAD, DATED 17-8-2011 IN C.M.P. 553/2010.

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ANX.3. TRUE COPY OF ORDER OF ADDITIONAL SESSION JUDGE PALAKKAD DIVISION AT OTTAPALAM, DATED 11-12-13 IN CRL. CRRP 81/2011.

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RESPONDENT(S)' EXHIBITS:

NIL.

//TRUE COPY//

P.A. TO JUDGE.

dlk

K. RAMAKRISHNAN, J.

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Crl.M.C.No.2123 of 2014

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Dated this the 20^th day of June, 2014.

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O R D E R

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The complainant in Crl.M.P.No.553/2010 and the revision petitioner in Crl.R.P.No.81/2011 on the file of Additional Sessions Judge, Palakkad has filed this Criminal Miscellaneous Case to set aside the order of dismissal of his complaint under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

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It is alleged in the petition that petitioner is the complainant in Crl.M.P.No.553/2010 on the file of the Judicial First Class Magistrate Court, Mannarkkad. He filed the complaint against respondents 2 to 4 alleging offence under Section 420 read with Section 34 of the Indian Penal Code. Earlier, the petitioner filed a complaint before the Mannarkkad police and they have registered Crime No.42/2010 against respondents 2 to 4 and without conducting proper investigation, they referred the case as civil nature. Thereafter the petitioner filed Annexure-1 complaint which was numbered as Crl.M.P.No.553/2010. The petitioner and two witnesses were

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examined and, according to the petitioner, the learned Magistrate on an erroneous appreciation of facts and evidence dismissed the complaint under Section 203 of the Code by Annexure -2 order dated 17.8.2011. The petitioner filed revision before the Sessions Court as Crl.R.P.No.81/2011 which was made over to the Court of Additional Sessions Judge, Ottapalam and the learned Additional Sessions Judge by Annexure-3 order dismissed the revision. Aggrieved by the same, the petitioner has come before this Court seeking to set aside the impugned orders passed by the learned Magistrate confirmed by the Additional Sessions Judge invoking the power under Section 482 of the Code.

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Heard the counsel for the petitioner and the counsel for respondents 2 to 4 and the learned Public Prosecutor.

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The counsel for the petitioner submitted that the order passed by the Magistrate was a non speaking order and the learned Sessions Judge ought to have on that ground allowed the revision and directed the Magistrate to pass appropriate orders. In stead, the learned Additional Sessions Judge had gone into the merit and passed the impugned order. Further, it is not necessary for the complainant to adduce evidence which is sufficient to get a conviction at the stage of enquiry under

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Section 202 of the Code and what is required to be considered by the Magistrate at that time is only whether there is sufficient ground made out for proceeding against the accused persons and issuing process to them. The evidence of CWs 1 to 3 will go to show that the complainant had made out a prima facie case as well as sufficient ground to proceed against the accused persons and the dismissal of the complaint by the court below confirmed by the revisional court are illegal and improper and the same is liable to be set aside.

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On the other hand, the learned counsel for respondents 2 to 4 submitted even going by the allegations in the complaint, there was no inducement made but on the other hand, on the basis of the offer made by the accused persons, they have given the visiting visa and son of the petitioner had gone to abroad, but since he did not get employment, he came back and thereby no offence has been committed by respondents 2 to 4. So the courts below were perfectly justified in dismissing the complaint.

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The learned Public Prosecutor supported the submissions made by the counsel for the petitioner.

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It is an admitted fact that the petitioner earlier filed a complaint before the Mannarkad police and they have

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registered Crime No.42/2010 against respondents 2 to 4 alleging offence under Section 420 read with Section 34 of the Indian Penal Code and after investigation, they filed a refer report stating that it is a case of civil nature. Aggrieved by the same, the petitioner filed Annexure-1 protest private complaint before the Judicial First Class Magistrate Court, Mannarkkad reiterating the same allegations and after taking sworn statement of the complainant namely the petitioner as CW1 and examining two witnesses as Cws 2 and 3, the learned Magistrate came to the conclusion that there was no prima facie case or sufficient ground made out to proceed against the accused persons and dismissed the complaint vide Annexure-2 order. This was challenged by the petitioner by filing Crl.R.P.No.81/2011 before the Sessions Court and by Annexure-3 order, the learned Additional Sessions Judge, Ottapalam had dismissed the revision petition by confirming Annexure 2 order passed by the Magistrate, which is being challenged before this Court.

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The power of this Court under Section 482 of the Code is very limited. It is true that the Magistrate while dismissing the complaint under Section 203 of the Code has to give reasons for dismissal of the complaint. This was so held in the

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decision reported in Fr. Abraham v. Thomas (1989 (1) KLT 85). Further in the same decision, it has been held that the reasons for dismissal will not include any and every reason. Reasons must be judicially sound and acceptable. Dismissal at that stage can be made only when the reasons disclose that the proceedings cannot terminate successfully in a conviction. The Magistrate is not debarred from going into the merits of the evidence produced by the complainant. But the object of the consideration of the merits of the case, at that stage, could only be in order to determine there are sufficient grounds for proceeding further or not. Prima facie grounds alone are being considered. Consideration is not whether the accused is guilty or innocent. The mere existence of some grounds, which would be material for deciding whether the accused should be convicted or acquitted, does not generally indicate that the case must necessarily fail. These are matters to be proved at the trial. Such grounds may only indicate the need to proceed further in order to discover the truth after a full and proper trial. Order of dismissal of the complaint cannot be converted into a full-fledged order of acquittal or discharge. If a bare perusal of the complaint or the evidence shows that essential ingredients of the offence alleged are absent or that the dispute

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is of a civil nature or that there are patent absurdities in the evidence which would make the trial a waste of time, the complaint could be properly dismissed under Section 203. What the Magistrate has to consider at the stage of issue of process is not the correctness or probability or improbability of the individual's items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what is stated in evidence can be true, unless the prosecution allegations are so fantastic or they cannot be reasonably held to be true.

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In the decision reported in Nirmaljit Singh Hoon v. The State of West Bengal & Others (AIR 1972 SC 2639) it has been held that at the stage of enquiry under Section 203 of the Code, the court need only to consider as to whether there is any prima facie case made out to proceed against the accused and at that stage it is not necessary for the court to consider the genuineness of the evidence adduced to consider as to whether that will be sufficient to attract conviction.

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Further in the decision reported in S.W. Palanitkar and Others v. State of Bihar & Another (2002 (1) SCC 241) it has been held that fraudulent or dishonest intention should exist at the time of making inducement in order to

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attract offences under Sections 405, 406 and 420 of the Indian Penal Code. Mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. It is also held in the same decision that, merely because there is alternate civil remedy is available is not sufficient to dismiss the complaint, if the allegations are sufficient to attract commission of a criminal offence. The same view has been reiterated in the decision reported in Muraleedharan N.T. v. State of Kerala & another (2011(3) KHC 29).

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With this principles in view in mind, the case in hand has to be considered. It will be seen from the allegations in the complaint itself that the first accused had informed the petitioner during 2008 March that he was having three free visas and if any interested persons are there, he can inform the same and he wanted Rs.1,20,000/- has to be paid for each visa and the petitioner wanted one such visa for his son Mahesh and obtained the same and later his son went abroad and after sometime, he did not get any employment and he did not get any help from the accused persons and so he had to return to his native place. Later, he obtained employment visa through somebody else and when the first accused came to India, he contacted with the accused persons and they promised to return

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the amount, but they did not return it. So, according to the complainant, the accused persons have committed the offence of cheating.

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The complainant was examined as CW1 and he deposed in tune with his allegations in the complaint. Cws 2 and 3 were examined to prove that amounts were paid by the petitioner to the accused persons. It is seen from the allegations in the complaint as well as from the evidence of CW1 that there is no offer to give any employment visa but he had only informed that he is having free visa for which he demanded Rs.1,20,000/-. The complainant had no case that on the basis of the free visa, his son could not go abroad. It was admitted in the complaint as well as evidence of CW1 that his son went abroad, but he did not get employment. So he will have to come back. So it is clear from the allegations in the complaint that there is only an offer by the accused to provide for free visa using which a person can go abroad and responsibility of the person who is going abroad has to make his own arrangement to get employment there. So there is no inducement made by the accused, even as per the allegations that he has given a promise to give an employment visa which he did not give. Further even as per the allegations in the complaint, the

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transaction had taken place in the year 2008 and his son came back in the same year and then later he went abroad again, but the complaint was filed only in the year 2010 long after the alleged transaction. That also throws some doubt regarding the conduct of the petitioner in launching the complaint. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that there was no inducement made by the accused to the complainant to part with the amount on the promise of getting an employment visa which later he did not fulfill. So, the courts below were perfectly justified in coming to the conclusion that even assuming that the entire allegations are true, there is no criminal offence of cheating made out and as such there is no prima facie case or sufficient ground made out by the complainant to proceed against the accused persons and rightly dismissed the complaint. Though the entire evidence was not discussed by the Magistrate, the Magistrate also came to the conclusion that on the basis of the evidence, there is no prima facie case or sufficient ground made out to proceed against the accused and dismissed the complaint under Section 203 of the Code and the learned Sessions Judge had elaborately discussed the evidence adduced by the complainant and the witnesses as a revisional authority

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entitled to go into the illegality or impropriety of the order passed by the court below in coming to the conclusion as to whether there is any prima facie case or sufficient ground made out to proceed against the accused and dismissing the complaint under Section 203 of the Code and rightly dismissed the revision as well. So, there is no illegality committed by the courts below in passing the impugned orders which requires interference by this Court invoking the power under Section 482 of the Code and there is no merit in the petition and the same is liable to be dismissed.

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In the result, this petition is dismissed.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

/true copy/

P.S to Judge