Allowed

Vinod v. State of Kerala

Kerala HC5 Nov 2019Crl.MC/5773/2017

Case brief

AI extract

What is this about?

Petitioners, accused of cheating for allegedly failing to complete construction and refund an advance, filed a petition to quash criminal proceedings. The Court held that the dispute was essentially civil in nature. It ruled that mere breach of contract without proof of dishonest intention at the time of the transaction does not constitute cheating. Exercising powers under Section 482 Cr.P.C., the

What did the court decide?

The criminal proceedings in C.C. No.86/2017, based on the final report in Crime No.53/2017, were quashed.

Vinod Vs 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 R. NARAYANA PISHARADI

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TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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Crl.MC.No.5773 OF 2017

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AGAINST THE PROCEEDINGS IN CC 86/2017 OF CHIEF JUDICIAL MAGISTRATE, THRISSUR

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CRIME NO.53/2017 OF Town West Police Station , Thrissur

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PETITIONERS:

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1 VINOD AGED 44 YEARS, S/O VELAYUDHAN NAIR,KANDAKAVIL, MANAKODY, THRISSUR WEST,THRISSUR.

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2 RESHMI

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AGED 37 YEARS, W/O VINOD, KANDAKAVIL,MANAKODY, THRISSUR WEST, THRISSUR.

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BY ADVS.

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SRI.G.SANTHOSH KUMAR (P). SRI.JEEVAN BALAKRISHNAN

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RESPONDENTS:

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1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.682031.

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2 RAJAN AGED 45 YEARS, S/O CHAKKAPPAN,KOOTTALA HOUSE, KANIMANGALAM,THRISSUR WEST, THRISSUR. 678 042

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SRI C S HRITHWIK-SR PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.10.2019, THE COURT ON 05.11.2019 PASSED THE FOLLOWING:

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Crl.M.C.No.5773/2017

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R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.5773 of 2017

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Dated this the 5^th day of November, 2019

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O R D E R

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This petition is filed to quash the proceedings against the petitioners in the case C.C.No.86/2017 on the file of the Court of the Chief Judicial Magistrate, Thrissur, which is based on Annexure-II final report filed in Crime No.53/2017 of Thrissur West police station, Thrissur.

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The petitioners are the accused in the aforesaid case. The prosecution case is as follows: The petitioners are the partners of the firm V.R.Associates. On behalf of the firm, the first petitioner had entered into an agreement with the wife of the second respondent/de facto complainant for construction of a house in the property owned by her. The petitioners obtained a total amount of Rs.7,47,100/- from the second respondent in two instalments as advance. They did construction work for only

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Crl.M.C.No.5773/2017

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Rs.1,45,000/. They did not return the balance amount to the second respondent and thereby, cheated the second respondent.

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The case against the petitioners was registered on the basis of a complaint filed by the second respondent in the Magistrate's Court which was forwarded to the police for investigation under Section 156(3) Cr.P.C. After completing the investigation, Annexure-II charge sheet was filed against the petitioners for the offences punishable under Sections 417, 418 and 420 read with 34 I.P.C.

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The petitioners have prayed for quashing the final report

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on the ground that the allegations raised against them, even if accepted as true, will not constitute the ingredients of the offence of cheating under Section 415 I.P.C.

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Heard counsel for the parties and the Public Prosecutor.

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Annexure-III is the agreement entered into between the

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first petitioner and the wife of the second respondent. As per this agreement, the first petitioner had to complete the construction of the house within a period of 10-12 months from the date of obtaining permit from the local authority. Annexure-IV permit

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Crl.M.C.No.5773/2017

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issued in the name of the wife of the second respondent for construction of the house is dated 22.12.2016. The first information report against the petitioners, on the basis of the complaint made by the second respondent in the court, was registered on 12.01.2017. Therefore, the offence of cheating will not lie against the petitioners on the ground that they did not complete the construction of the house within the period stipulated in the agreement.

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Then, the only remaining basis for raising an allegation of cheating against the petitioners is that they did not return the money to the second respondent. Even before the period stipulated in the agreement for completing the construction of the house, criminal proceedings had been initiated against the petitioners. Even if any amount is due to the second respondent from the petitioners, it cannot be found that they have deceived him and obtained money from him on the basis of such deception.

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On a perusal of the witness list in Annexure-II charge sheet, it is seen that the wife of the second respondent is not

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Crl.M.C.No.5773/2017

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even made a witness for the prosecution.

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The allegations raised against the petitioners, even if accepted as true, do not contain the elements of the offence of cheating. This is evidently a case where the dispute between the parties is of a civil nature and an attempt is made by the second respondent to settle the dispute with the petitioners by initiating criminal proceedings against them.

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A mere failure to keep up promise cannot be presumed as an act leading to cheating. Distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of the alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused could be found guilty of the offence of cheating. On the other hand, if all that is alleged is that a representation or promise made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy

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Crl.M.C.No.5773/2017

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for breach of contract in a Civil Court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction.

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The mere inability of the petitioner to return the amount, if any, due to the second respondent, cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is the mens rea which is the crux of the offence. Even if all the facts are taken on their face value, no such dishonest representation or inducement could be found or inferred. Criminalizing civil disputes, such as breach of contractual obligations, cannot be permitted.

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In the aforesaid circumstances, I am satisfied that this is a fit case in which the power of this Court under Section 482 Cr.P.C shall be exercised to quash the proceedings against the petitioners in the case.

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Consequently, the petition is allowed and the entire proceedings against the petitioners in the case C.C.No.86/2017

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Crl.M.C.No.5773/2017

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on the file of the Court of the Chief Judicial Magistrate, Thrissur, which are based on Annexure-II final report filed in Crime No.53/2017 of Thrissur West police station, are hereby quashed.

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

jsr/04/11/2019

Crl.M.C.No.5773/2017

APPENDIX

PETITIONERS' EXHIBITS:

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ANNEXURE 1 CERTIFIED COPY OF THE F.I.R IN CRIME NO. 53/2017 DATED 12.1.2017 OF THRISSUR WEST POLICE STATION.

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ANNEXURE II CERTIFIED COPY OF THE CHARGE-SHEET IN CC NO.86/2017 DATED 18.4.2017. ANNEXURE III TRUE COPY OF THE AGREEMENT DATED 30.3.2016 ENTERED BETWEEN THE 1ST PETITIONER AND WIFE OF THE 2ND RESPONDENT. ANNEXURE IV TRUE COPY OF THE BUILDING PERMIT DATED 22.12.2016 ISSUED BY THE THRISSUR CORPORATION TO THE WIFE OF THE 2ND RESPONDENT. ANNEXURE V TRUE COPY OF THE ORDER DATED 18.5.2017 IN I.A NO.2888/17IN C.C NO. 93/2017 PASSED BY THE CONSUMER DISPUTES REDRESSAL FORUM, THRISSUR.

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RESPONDENTS' EXHIBITS : NIL

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TRUE COPY

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PS TO JUDGE

Vinod v. State of Kerala

Case brief

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Vinod v. State of Kerala

Case brief

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