Allowed

P.a.Mohammed Iqbal v. State of Kerala

Kerala HC8 Aug 2016Crl.MC/543/2016

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition filed by an accused, the High Court of Kerala examined allegations under Section 420 IPC regarding failure to arrange a visa and subsequent cheque dishonour. The Court held that without culpable intent at the time of the promise, no offence was made out and quashed the proceedings.

What did the court decide?

All further proceedings against the petitioner in L.P.No. 3 of 1991 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram are quashed.

P.a.Mohammed Iqbal 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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MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

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Crl.MC.No. 543 of 2016

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L.P.NO.3/1991 IN C.C.NO. 107/1990 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM

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PETITIONER(S)/ACCUSED :

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P.A.MOHAMMED IQBAL, AGED 65 YEARS, S/O. ABDUL KHADER, PYNGAMADOM, ALAPPUZHA - 688 001.

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BY ADVS. SRI.V.R.GOPU

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SRI.J.NARAYANA PILLAI

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RESPONDENT(S)/STATE & COMPLAINANT :

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031.

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2. V.MURALEEDHARAN, POOJA BHAVAN, SWAMI NAGAR, EX-SERVICEMEN NAGAR COLONY, PACHA PALODE, NEDUMANGADU, PIN - 695 562.

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R1 BY PUBLIC PROSECUTOR SRI.AMJAD ALI

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Msd.

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Crl.MC.No. 543 of 2016

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APPENDIX

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PETITIONER(S)' ANNEXURES :

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ANNEXURE-A1: CERTIFIED COPY OF THE COMPLAINT C.C NO.107/1990 ON THE FILE OF THE CHIEF JUDICIAL FIRST CLASS MAGISTRATE, THIRUVANANTHAPURAM, DATED 04.06.1990.

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ANNEXURE-A2: THE TRUE COPY OF THE PASSPORT IN FAVOUR OF PETITIONER DATED 20TH JUNE, 1989.

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RESPONDENT(S)' ANNEXURES :

NIL

//TRUE COPY//

P.A.TO JUDGE

Msd.

RAJA VIJAYARAGHAVAN, V., J.

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Crl.M.C. No.543 of 2016

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Dated this the 8^th day of August, 2016

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O R D E R

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~~~~~~~~

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1.The petitioner herein is the accused in L.P.No.No. 3 of 1991 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram. The said case has arisen from a complaint filed by one V.Muraleedharan alleging offence punishable under Section 420 of the IPC.

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2.The case of the complainant is that, on 14.6.1989, the petitioner herein had received a sum of Rs.13,500/- from the complainant after assuring him that he would arrange a VISA for enabling him to travel abroad. The petitioner failed to arrange the VISA as promised. After repeated requests, the petitioner is alleged to have issued two cheques to the de facto complainant. The cheques when

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presented were dishonoured. According to the

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Crl.M.C. No.543 of 2016

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-2-

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prosecution, the intention of the petitioner was to cheat the de facto complainant.

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3.It is submitted by the learned counsel that the petitioner was working in a travel agency and thereafter he went abroad. It is only when he recently returned, he came to understand that a case against him is pending in the Long Pending Register on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram. According to the petitioner, the initiation of criminal prosecution under Section 420 of the IPC is nothing but an abuse of the process. The learned counsel also contends that even if the prosecution allegations are admitted as true , the offence under Sections 420 of the IPC will not be attracted.

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4.Initially the de facto complainant was arrayed as the 2^nd respondent in the Crl.M.C. Notice was issued to the 2^nd respondent which was returned unserved stating that the

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Crl.M.C. No.543 of 2016

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addressee is not known. Thereafter, a petition was filed by the petitioner herein seeking a direction to the 1^st respondent to ascertain whether the 2^nd respondent is alive, as according to the petitioner he was no more. The learned Public Prosecutor after instructions submits that the whereabouts of the de facto complainant is not known. Annexure-A1 is filed on 4.6.1990 and more than two decades have elapsed. The petitioner prays that he may not be subjected to the ordeal of a trial and submits that when Annexure-1 does not disclose the ingredients of the offence alleged, nothing prevents this Court from exercising its inherent power to quash the proceedings.

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5.I have considered the rival submissions and I have also

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heard the learned Public Prosecutor.

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6.The only allegation against the petitioner is that in respect

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of a transaction which occurred earlier, the petitioner had handed over two cheques which when presented were

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Crl.M.C. No.543 of 2016 -4-

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dishonoured. There is no whisper in the complaint that the petitioner had culpable intent at the time of handing over the cheques to the de facto complainant. The fact that the cheques were handed over for repayment of the liability, in the facts and circumstances of the instant case, clearly will show that the petitioner had no guilty intent at the inception.

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7.In Jose V.Y. and Another v. State of Gujarat and

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Another [2009(3) SCC 78] the Apex Court had held that even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making the initial promise, no offence under Section 420 of the IPC can be said to have been made out. It was observed as

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follows in paragraph 16 of the judgment.

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“16. S.415 of the Indian Penal Code defines cheating as under: 16. 'S.415. Cheating. -- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so

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Crl.M.C. No.543 of 2016

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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'.'

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An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:

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(i) deception of a person either by making a false or misleading representation or by other action or omission;

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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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For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under S.420 of the Indian Penal Code can be said to have been made out.”

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Crl.M.C. No.543 of 2016 -6-

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8.After having gone through Annexure-1 complaint, I am of the view that the ingredients of the offence is not made out. The proceedings are liable to be quashed. All further proceedings against the petitioner, who is the accused in L.P.No.No. 3 of 1991 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram, are quashed.

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Petition is allowed.

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Sd/-

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RAJA VIJAYARAGHAVAN, V. JUDGE

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Ps/11/8/16

P.a.Mohammed Iqbal v. State of Kerala

Case brief

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P.a.Mohammed Iqbal v. State of Kerala

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