Allowed

J.Suresh Kumar B.E. v. State of Kerala

Kerala HC7 Dec 2018Crl.MC/4074/2018

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 Cr.P.C. to quash criminal proceedings initiated for offences of cheating and criminal breach of trust against a father-daughter duo. The Court held that allegations did not attract criminal liability as the agreed acts were limited to engaging counsel in disciplinary proceedings and the loan recovery, constituting a civil breach rather than a cog

What did the court decide?

The criminal proceedings under C.C. No.482 of 2017 are quashed.

J.Suresh Kumar B.E. Vs State of Kerala — Cheating and Forgery | Kerala HC (2018)

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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.ABRAHAM MATHEW

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FRIDAY ,THE 07TH DAY OF DECEMBER 2018 / 16TH AGRAHAYANA, 1940

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Crl.MC.No. 4074 of 2018

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AGAINST THE ORDER IN CC 482/2017 of J.M.F.C.,KUTHUPARAMBA

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PETITIONERS:

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1 J.SURESH KUMAR B.E. AGED 70 YEARS 70 YEARS, S/O. JANARDHANAN, PRIVATE DETECTIVE & LEGAL SERVICE, THOPPIL HOUSE, OLD G.P.O, VANCHYOOR ROAD,VANCHIYOOR (P.O), THIRUVANANTHAPURAM(DIST).

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2 SREEDEVI AGED 38 YEARS

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38 YEARS, W/O. SUJITH KUMAR T.J, AALUVILA HOUSE,NALAM CHIRA(P.O), THIRUVANANTHAPURAM (DIS).

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BY ADV. SMT.K.DEEPA (PAYYANUR)

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RESPONDENTS:

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

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2 JOSEPH K.J AGED 40 YEARS 40 YEARS, S/O. JOSEPH MATHEW, KIZHAKKE MUTTOM HOUSE,MANGATTIDAM AMSOM, KURUMBAKKAL DESOM, (P.O) NIRMALAGIRI,THALASSERY TALUK, KANNUR(DIST), PIN 670 701.

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BY ADV. SRI.JACKSON JOHNY

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SR.PP. SRI. C.S. HRITHWIK

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 4074 of 2018 2

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ORDER

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Petition filed under Section 482 Cr.P.C.

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Petitioners are the accused in C.C. No.482

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of 2017 on the file of the Judicial First Class

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Magistrate Court, Kuthuparamba. They are father and daughter. The first petitioner was conducting a private detective agency. His daughter, the second petitioner was a student of a nursing college attached to Govt. Medical College, Kozhikode. The sister in-law of the second respondent was working as Senior Lecturer at the Medical College, Kozhikode.

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She proposed to go abroad where her husband was

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employed. The second petitioner made her believe that the first petitioner, who is her father, could

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help her in getting leave to go abroad. The

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petitioners received from the second respondent's

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sister in-law Rs.6 lakh in installments and obtained a power of attorney from her. Believing the words of

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the petitioners the second respondent's sister in-law left India. But the petitioners did not do anything

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in the matter. In discharge of the liability the

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first petitioner issued a cheque. It was returned

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Crl.MC.No. 4074 of 2018 3

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dishonoured. The petitioners thus committed the offences under Sections 406 and 420 IPC. This is the prosecution case. The proceedings are sought to be quashed on the ground that the allegations are false and the facts of the case do not attract any offence.

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Heard the learned counsel for the petitioners and the second respondent and the learned Public Prosecutor.

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It is seen from Annexure-5 Government Order

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that the second respondent's sister in-law had been unauthorisedly absent from duty since 18.1.2010. Disciplinary proceedings had been initiated against

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her before the alleged agreement was entered into between the petitioners and her. On 5.3.2013 the second respondent's sister in-law executed Annexure-4 power of attorney authorising the first petitioner to do the following acts on her behalf:

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statements and other declarations that

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are necessary and expedient for further proceedings.

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Crl.MC.No. 4074 of 2018 4

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or pleading personally on my behalf.

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collect plaints and other records vakalaths, written statements, appeals, petitions, objections, cross objections, affidavits, reply affidavits and other incidental things in respect of the said affair. “NO TRANSFER IS MADE BY THIS DOCUMENT to anybody for executing this power, the attorney here under proper accounts maintain for all receipts and disbursements as AGENT”

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I HEREBY AGREE THAT ALL ACTS AND THINGS

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done by my said attorney shall be construed as ACTS AND THINGS done by me

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and undertake to ratify and confirm all and whatsoever that may said attorney shall lawfully do any cause to be done me by virtue of this power hereby given.

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On 24.9.2013 the government passed Annexure-5 order removing her from service.

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The second respondent is bound by Annexure-4

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Crl.MC.No. 4074 of 2018 5

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power of attorney. The power of attorney proves that

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the first petitioner only undertook to sign necessary

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forms, statements and other declarations in the proceedings on behalf of the second respondent's sister in-law in the disciplinary proceedings pending against her and to engage a counsel on her behalf. The allegation in the complaint that he undertook to get a favourable order is not in conformity with the power of attorney relied on by the second respondent.

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If the first petitioner failed to discharge his duties, it will only amount to breach of contract.

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The learned counsel for the second respondent

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submits that the cheque issued by the first petitioner to discharge his liability was dishonoured

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by the bank and this amounted to cheating. It is

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well settled that dishonour of a cheque issued to

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discharge an antecedent debt does not attract Section 420 IPC.

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The facts of the case do not attract either

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Section 406 or Section 420 IPC. The proceedings

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against the petitioners are liable to be quashed.

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Crl.MC.No. 4074 of 2018 6

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In the result, this Crl.M.C is allowed. The

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proceedings in C.C. No.482 of 2017 on the file of the Judicial First Class Magistrate Court, Kuthuparamba are quashed.

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Sd/-

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K.ABRAHAM MATHEW JUDGE

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APPENDIX

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PETITIONERS' EXHIBITS:

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ANNEXURE1 TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE DE-FACTO COMPLAINANT AGAINST THE PETITIONERS, WHICH HAS BEEN PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA

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ANNEXURE II CERTIFIED COPY OF THE ORDER DATED 16.01.2017 IN CMP 2417/2016IN CC 482/2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA

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ANNEXURE11 TRUE COPY OF THE ORDER, G.O.(RT) NO.3574/2012H & FWD DATED 29.10.2012 GIVEN BY CW1 TO THE PETITIONER TO THE EFFECT OF SANCTIONING OF LEAVE TO SMT. SANDYA'S ON DEPOSIT OF BOND AMOUNT OF RS. 1LAKH

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ANNEXURE III TRUE COPY OF THE ORDER, G.O.(RT) NO.3574/2012H &FWD DATED 29.10.2012 GIVEN BY CW1 TO THE PETITIONER TO THE EFFECT OF SANCTIONING OF LEAVE TO SMT. SANDYA'S ON DEPOSIT OF BOND AMOUNT OF RS. 1LAKH

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ANNEXURE IV TRUE COPY OF THE POWER OF ATTORNEY DATED 05.03.2013 EXECUTED BY CW1 IN FAVOUR OF THE 1ST PETITIONER

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Crl.MC.No. 4074 of 2018 7

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ANNEXURE V TRUE COPY OF THE ORDER, G.P.(MS) NO.392/2013,H&FWD DATED 24.09.2013 ISSUED BY THE HEALTH AND FWD DATED 24.09.2013 ISSUED BY THE HEALTH & FAMILY WELFARE(C) DEPARTMENT TO THE EFFECT THAT THE PETITIONER HAS BEEN REMOVED FROM THE SERVICE WITH EFFECT FORM 18.01.2010

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ANNEXURE VI TRUE COPY OF THE ORDER, GO NO.33535/SI/2013/H&FWD DATED 13.02.2014 ISSUED BY HEALTH & FAMILY WELFARE (S) DEPARTMENT

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RESPONDENTS' EXHIBITS: NIL

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// TRUE COPY // PA TO JUDGE

J.Suresh Kumar B.E. v. State of Kerala

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J.Suresh Kumar B.E. v. State of Kerala

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