Allowed

Abdul Khader Thattathil v. the State of Kerala

Kerala HC13 Jun 2019Crl.MC/359/2013

Case brief

AI extract

What is this about?

Petitioner, accused in fraud investment case, sought quashing of proceedings after first complainant alleged misleading investment inducement. Court held ingredients of cheating and criminal breach of trust were not made out and continued prosecution an abuse of process.

What did the court decide?

Annexure-I FIR in Crime No. 575/CR/EOWIII/KKD/2010 of the CBCID, Kozhikode and all further proceedings pending against the petitioner herein are quashed.

Abdul Khader Thattathil Vs the State of Kerala — Quashing and FIR | Kerala HC (2019)

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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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THURSDAY, THE 13TH DAY OF JUNE 2019 / 23RD JYAISHTA, 1941

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Crl.MC.No. 359 of 2013

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(TO QUASH THE PROCEEDINGS IN CRIME NO.575/CR/EOWIII/KKD/10 OF CBCID, KOZHIKODE IN CRIME NO.274/2010 OF THE CHANGARAMKULAM POLICE STATION)

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PETITIONER/ACCUSED NO.2:

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ABDUL KHADER THATTATHIL, S/O.ABOOBACKER THATTATHIL, AGED 39 YEARS, THADATHIL HOUSE, KOLALAMP P.O., EDAPPAL VIA, KOLALAMP AMSOM, DESOM, MALAPPURAM DISTRICT-679 576.

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA

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RESPONDENTS/COMPLAINANT:

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1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DETECTIVE INSPECTOR, CBCID, EOW-III, KOZHIKODE, SUB UNIT KANNUR-674008.

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3 THE SUB INSPECTOR OF POLICE, CHANGARAMKULAM POLICE STATION, MALAPPURAM DISTRICT-679577.

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4 SOUJATH, AGED 39 YEARS, W/O.VALIYAPEEDIYEKAL SIDDIQUE, EDAPPAL AMSOM, VENGANIKKARA DESOM, MALAPPURAM DISTRICT-679579.

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BY PUBLIC PROSECUTOR SRI. RAMESH CHAND

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

CRL.MC:359/2013

ORDER

The petitioner is the 2^nd accused in Crime No.274 of 2010 registered at the Changaramkulam Police Station. He is accused of having committed offence punishable under Sections 406 and 420 of the IPC. The investigation was made over to the CBCID, Kozhikode and the case was re-registered as Crime No.575/CR/EOWIII/KKD/10.

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The de facto complainant is Smt. Soujath. In her complaint she alleges that her Husband, Sri Siddique, was working in Al Ain, UAE. The petitioner is his relative and he was also working overseas. The petitioner is alleged to have contacted her husband in the year 2007 and impressed upon him that it would be worthwhile to invest in the business which was being run by his friend, a certain Sidhiq. The complainant’s husband, impressed by the words of the petitioner, is alleged to have invested 70000 Dirhams in the said business on condition that interest at the rate of Rs.5,000/- would be paid every month for every lakh invested. During the first few moths, interest was provided. Later, when it dried down, they decided to get in touch with Sidhiq. They realized to their dismay that the Sidhiq had left the country after defrauding several innocent investors.

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CRL.MC:359/2013

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The learned counsel appearing for the petitioner would contend that the even if the allegations are admitted as such, no offence would be made out as against the petitioner. It is submitted that the de facto complainant or her husband has no case that the petitioner herein had misappropriated any amount. On the other hand, the business conducted by the aforesaid Siddique nosedived, which led to him incurring huge losses. It is further submitted that though the crime is registered in the year 2010 and though almost a decade has elapsed, the final report has not been laid till date. The continuation of the criminal proceedings against the petitioner is clearly an abuse of process, contends the learned counsel.

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The learned Public Prosecutor has filed a detailed statement, wherein the transaction between the husband of the de facto complainant and Sidhiq is re-iterated. The only allegation against the petitioner is that it is based on his inducement that the money was paid. It is also stated that as many as 29 crimes have been registered against the 1^st accused and it is only in one case that the petitioner has been roped in as an accused.

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I have considered the submissions advanced and have gone through the materials made available.

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CRL.MC:359/2013

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Essentially, the allegation as per the earliest records is that based on the inducement made by the petitioner, certain amounts were invested by the husband of the de facto complainant in the business run by one Sidhiq on the assurance that good returns would be provided for the investment. When Sidhiq went back on his word, the law was set in motion. The question is without any other materials against the petitioner, the above allegation would make out an offence under Sections 406 and 420 of the IPC. It has to be borne in mind that the investigation has not moved forward though the crime was registered in the year 2010. It would also be relevant to note that 28 separate crimes have been registered against the aforesaid Sidhiq and the petitioner herein is arrayed as accused only in the instant case. Admittedly, the petitioner is a near relative of the husband of the de facto complainant and he was also working abroad. It is also stated in the complaint that Sidhiq had offered interest as assured during the first few months and later, went back on his word.

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In order to attract the offence under Section 406 of the IPC, it has to be prima facie shown that the petitioner herein was, in any manner, entrusted with the property and that he had dishonestly misappropriated or had converted it to his own use in violation of any

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CRL.MC:359/2013

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direction of law or such other stipulations. There is also no case that the petitioner had fraudulent intent when he persuaded the husband of the de facto complainant to advance money to the aforesaid Sidhiq as investment with assured returns. An offence of cheating would be constituted only when the accused had fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating.

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Having considered the entire aspects, I am of the considered view that the ingredients of the offence under Section 406 or 420 of the IPC are not attracted in the instant case insofar as the petitioner is concerned.

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The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where, in the opinion of the

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CRL.MC:359/2013

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court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case also, quash the proceeding even though it may be at a preliminary stage. (See Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chadrojirao Angre and Ors. [AIR 1988 SC 709]; Prof. R.K. Vijayasarathy v. Sudha Seetharam [2019 (1) KLD 532]. In that view of the matter, I hold that the continuance of proceedings as against the petitioner herein is a clear abuse of process.

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In the result, this petition is allowed. Annexure-I FIR in Crime No. 575/CR/EOWIII/KKD/2010 of the CBCID, Kozhikode and all further proceedings pursuant thereto pending against the petitioner herein are quashed.

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RAJA VIJAYARAGHAVAN V., JUDGE

krj

CRL.MC:359/2013

APPENDIX

PETITIONER’S EXHIBITS:

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ANNEXURE-A1:- TRUE COPY OF THE FIR NO.274 OF 2010 REGISTERED BY THE SUB INSPECTOR OF POLICE, CHANGARAMKULAM POLICE STATION AND SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PONNANI

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ANNEXURE-A2:TRUE COPY OF THE SIGNED STATEMENT DATED

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11.20.2010 OF THE FOURTH RESPONDENT.

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RESPONDENTS’ EXHIBITS:-NIL

Abdul Khader Thattathil v. the State of Kerala

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Abdul Khader Thattathil v. the State of Kerala

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