A bench of the High Court of Kerala quashed the final report under Section 482 Cr.P.C. holding that issuing a cheque towards a closed account to clear an existing debt does not inherently amount to cheating under Section 415 IPC as there was no allegation of initial intent to deceive.
Criminal Misc. Case allowed; Final Report in Crime No. 1831/2009 quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936
Crl.MC.No. 279 of 2013 ()
AGAINST THE ORDER/JUDGMENT IN CC 21/2010 of J.M.F.C.-I MUVATUPUZHA. CRIME NO. 1831/2009 OF MUVATTUPUZHA POLICE STATION , ERNAKULAM
PETITIONER(S)/ACCUSED 1 & 2 :
----------------------------
1. KUNHU HYDRU, AGED 83 YEARS, S/O. VEERANKUTTY, KAIPPILLI HOUSE, KUTTIPURAM VILLAGE, KUTTIPURAM.P.O., MALAPPURAM DISTRICT.
2. ABDULLAKUTTY AGED 40 YEARS, S/O. KUNHU HYDRU, KAIPPILLI HOUSE, KUTTIPURAM VILLAGE, KUTTIPURAM.P.O., MALAPPURAM DISTRICT.
BY ADVS.SRI.P.VENUGOPAL (1086/92) SRI.M.REVIKRISHNAN
RESPONDENT(S)/DEFACTO COMPLAINANT & STATE :
------------------------------------------
1. P.S.ISMAYIL, S/O. SANDU MUHAMMED, KAVUMKARAPALATHINKAL HOUSE, VELLURKUNNAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 661.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 081.
R1 BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SRI.K.V.REJANISH SMT.P.M.HRIDYA SRI.R.VINU RAJ R2 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 279 of 2013 ()
APPENDIX
PETITIONER(S) EXHIBITS :
RESPONDENTS' EXHIBITS : NIL.
//TRUE COPY//
P.A TO JUDGE
amk
A.HARIPRASAD, J.
Crl.M.C No.279 of 2013
Dated this the 2nd day of July, 2014.
O R D E R
Petition filed under Section 482 Cr.P.C. The complaint
filed by the first respondent in this matter against the petitioners
before the learned Magistrate was forwarded to police under
Section 156(3) Cr.P.C. After completing the investigation, they filed a final report. Annexure A is the complaint and Annexure B is the final report. The final report reveals offences against the
accused punishable under Section 420 r/w Section 34 I.P.C.
learned counsel for the respondent.
The complainant is engaged in ration wholesale business.
He was dealing with kerosene for a long time. In 2004, the
accused persons approached him for technical and financial help
for conducting a similar business in which they had failed. On
07-12-2004, an agreement was executed between the
Crl.M.C No.279 of 2013 2
complainant and the accused persons. The complainant had paid a sum of `3,00,000/- as security for running the business. Due to obstructions created by the second accused, the business could not be run and the complainant suffered loss. Even though he repeatedly asked the accused to return the security deposit, they did not do so. Finally on 17-08-2009, the second accused handed over a cheque to the complainant purported to be signed by the first accused. When the cheque was presented for collection, the complainant came to know that it was drawn on an account which was closed much earlier. Therefore, he could not realise the amount as per the cheque. According to the complainant, the accused persons have committed cheating by issuance of a cheque towards a closed account.
in the complaint that the accused persons ever intended to cheat the complainant. It is also submitted that mere issuance of a
Crl.M.C No.279 of 2013 3
cheque to a closed account will not constitute an offence of
cheating defined under Section 415 I.P.C.
Section 415 I.P.C, the learned Single Judge held as follows :
“ The cheating alleged in this case is regarding the issuing of Ext.P1 concealing the fact that it was drawn on a closed account. Since Ext.P1 cheque was issued in discharge of a so called existing debt, the concealing that the account was closed at the time when the cheque was issued would not satisfy the requirement of the definition of cheating under Section 415 IPC because there is no deception following the concealing. No damage or harm to the 1st respondent in body, mind, reputation or property was caused due to the concealing of the fact that the account was closed.
Crl.M.C No.279 of 2013 4
There is no evidence to show that the 1st respondent sustained any harm or loss other than the inability to recover the debt which was existing when Ext.P1 was issued.”
of cheating under Section 415 I.P.C with an illustration (g) thereunder :
“ 415. Cheating. - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
Explanation.- A dishonest concealment of facts is a deception within the meaning of
Crl.M.C No.279 of 2013 5
this section.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.”
cheating, there must be an allegation that deception had been practised on the complainant by making him believe that the accused persons would facilitate the running of business without any hindrance and also that they had an intention to deceive the complainant at the very beginning. Merely because after five years, a cheque had been issued to a closed account, it cannot be stated that the accused had an intention to cheat the complainant
Crl.M.C No.279 of 2013 6
at the inception of the transaction. There must be positive averments to that effect.
K.H.C 1020) to argue that the accused must have had the intention at the initial stage of transaction and they must have been induced the complaint for delivering any property etc. as mentioned in 415 I.P.C. On a careful reading of the complaint, it is not discernible therefrom that the accused ever intended to cheat the complainant at the commencement of the transaction.
me to an irresistible conclusion that the essential ingredients of Section 415 I.P.C have not been pleaded. The precedents mentioned above would show that merely for the reason a cheque was issued in discharge of a legally enforceable debt towards a closed account will not ipso facto attract an offence of cheating under Section 420 I.P.C. Therefore, I find that the continuation of the proceedings is an abuse of the process of the
Crl.M.C No.279 of 2013 7
court.
In the result, the Crl.M.C is allowed. Annexure B
final report in crime No.1831/2009 of Muvattupuzha Police Station is hereby quashed.
All pending interlocutory applications will stand dismissed.
A.HARIPRASAD, JUDGE.
amk
3 issues framed by the court
Whether issuance of a cheque towards a closed account in discharge of an existing debt constitutes cheating under Section 415 IPC.
Whether the complaint pleads essential ingredients of cheating under Section 415 IPC.
Whether the continuation of proceedings in the case amounts to an abuse of the process of the court.
Colour shows how this judgement treated each authority
Chandran K v. Ponnappa Moothan and AnotherExplained¶53
Chandran K v. Ponnappa Moothan and Another (2012(4) K.H.C 213)
M.S. Muraleedharan v. P.S. VijayakumarRelied on¶68
M.S. Muraleedharan v. P.S. Vijayakumar (2006 K.H.C 1020)
4 provisions across 2 enactments
Kunhu Hydru and Abdullakutty
P.S. Ismayil and State of Kerala
A. Hariprasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
