Quashed

Santhan v.Nair v. State of Kerala

Kerala HC16 Aug 2016Crl.MC/1042/2015

Case brief

AI extract

What is this about?

The High Court of Kerala in a criminal miscellaneous case analyzed a cheque bouncing/complaint alleging cheating. The court quashed the criminal proceedings against an advocate, holding the matter was purely civil and registration of crime was an abuse of process.

What did the court decide?

All further proceedings as against the petitioner in crime No. 57/15 of the Thiruvalla Police Station shall stand quashed.

Santhan v.Nair Vs State of Kerala — Cheating and Forgery | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938

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Crl.MC.No. 1042 of 2015 ()

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CRIME NO.57/2015 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT.

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PETITIONER/ACCUSED NO. 3:

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SANTHAN V.NAIR, AGED 36 YEARS, ADVOCATE, M/S.SANTHAN & ASSOCIATES, 41/3940, 2ND FLOOR, LILGY ESTATE, OLD RAILWAY STATION ROAD, ERNAKULAM.

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BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY

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RESPONDENTS/STATE/DEFACTO COMPLAINANT:

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1.STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031(CRIME NO.57/2015 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT).

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2.MADHUSOODANAN E.G., AGED 56 YEARS, S/O.GANGADHARAN NAIR, INDAMTHURUTHIL, NEERETTUPURAM, THALAVADI VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT - 688 001.

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R1 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K R2 BY ADVS.SRI.K.SHAJ

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SRI.SAJJU.S

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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mbr/

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Crl.MC.No. 1042 of 2015 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEXURE 1: COPY OF THE NOTICE SENT BY E-MAIL DATED 06/01/2015. ANNEXURE II: HARD COPY OF THE NOTICE DATED 06/01/2015 SENT BY POST. ANNEXURE III: CERTIFIED COPY OF THE COMPLAINT FILED BY THE SECOND RESPONDENT BEFORE THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, THIRUVALLA.

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RESPONDENT(S)' ANNEXURES: NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

RAJA VIJAYARAGHAVAN V., J.

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Crl. M.C. No. 1042 of 2015

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Dated this the 16^th day of August, 2016

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O R D E R

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1.The petitioner, an advocate by profession, has filed this

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petition under section 482 of the Code of Criminal

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Procedure challenging the registration of a crime by Sub Inspector of Police, Thiruvalla Police Station on an allegation that he has committed an offence under section 420 r/w Section 34 of the IPC .

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2.According to the petitioner ,the allegations made in the the complaint, even if they are taken at their face value and accepted in its entirety do not prima facie constitute any offence.

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3.The learned Counsel has targeted Annexure-III complaint filed by the 2^nd respondent herein to bring out the fact that the continuation of the criminal proceeding is an abuse of

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process. It will be relevant to briefly narrate the allegations in the complaint. According to the

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Crl. M.C. No. 1042 of 2015 2

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complainant , the accused Nos. 1 and 2 are son and father respectively and they are the owners of an item of property having an extent of 19.44 ares. The 1^st accused entered into an agreement for sale with the 2^nd respondent herein agreeing to sell the property for a total consideration of Rs 1 Crores. A sum of Rs. 60 lakhs was handed over towards part of sale consideration. The accused Nos.1 and 2 did not act in terms of the agreement . It was revealed later that the property was subject to a mortgage and the Bank has initiated proceedings against the said property. As against the petitioner herein, the allegation is that he was the counsel of the accused Nos. 1 and 2 and it was through the petitioner that the 2^nd respondent had realized that the property is subject to some encumbrance. It is on the strength of these allegations that the complaint was filed based on which, the crime was registered.

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4.Heard the learned counsel appearing for the petitioner and

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Crl. M.C. No. 1042 of 2015

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the 2^nd respondent .

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5.Annexure-2 is the notice dated 6.1.2005 issued by the petitioner to the 2^nd respondent for and on behalf of the accused No 1 and 2, calling upon the 2^nd respondent to get the sale deed executed after paying the balance of sale consideration. The soft copy of the said notice is produced

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as Annexure-1. Annexure-III complaint was filed immediately after the same .

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6.It is a matter of great relevance that the petition filed by accused Nos.1 and 2 challenging the same criminal proceedings has been quashed by this Court as per the order dated 5.10.2015 in Crl.M.C. No. 869/15 . This Court has held that the dispute is purely civil in nature.

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7.The ingredients of S.420 of the Penal Code are as follows:

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(i) Deception of any person;

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(ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

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Crl. M.C. No. 1042 of 2015

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8.I have bestowed my anxious consideration to the allegations in the complaint . No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.

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9.There exists a distinction between pure contractual dispute of civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in absence of the averments made in the complaint where from the ingredients of an offence can be found out, this Court should not hesitate to exercise its jurisdiction under S.482 of the Code of Criminal Procedure.

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10.I am firm in my view that this is evidently a case of that nature. The registration of the crime against the petitioner is clearly an abuse of process. It deserves to be

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Crl. M.C. No. 1042 of 2015 5

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terminated at the threshold itself.

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All further proceedings as against the petitioner in crime No. 57/15 of the Thiruvalla Police Station will stand quashed.

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Sd/- RAJA VIJAYARAGHAVAN V., JUDGE

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SKS

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//TRUE COPY//

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P.A. TO JUDGE

Santhan v.Nair v. State of Kerala

Case brief

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Santhan v.Nair v. State of Kerala

Case brief

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