Allowed

Jayasankar K v. State of Kerala

Kerala HC15 Dec 2021Crl.MC/5759/2017

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings filed as a colourable suit to exert pressure on the accused. The Court held that the dispute was civil in nature involving deficiency of service, lacking dishonest intention required for criminal offences.

What did the court decide?

The criminal miscellaneous cases were allowed, and the private complaint along with all further proceedings in the underlying criminal case were quashed.

Jayasankar K Vs State of Kerala — Cheque Dishonour | Kerala HC (2021)

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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 ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 15^TH DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943

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CRL.MC NO. 5670 OF 2017

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[AGAINST CC NO. 514/2017 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE

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COURT, THIRUVANANTHAPURAM]

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PETITIONERS/ACCUSED NOS. 1 AND 2 :

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1 AKBAR ONLINE BOOKING COMPANY PVT. LTD. REPRESENTED BY ITS MANAGING DIRECTOR,OUR TOWERS, VELLAYAMBALAM,SASTHAMANGALAM PO., THIRUVANANTHAPURAM

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2 K.V.ABDUL NAZAR MANAGING DIRECTOR,AKBAR ONLINE BOOKING COMPANY PVT LTD OUR TOWERS, VELLAYAMBALAM, SASTHAMANGALAM PO., THIRUVANANTHAPURAM

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BY ADV SRI.M.SREEKUMAR

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RESPONDENTS/STATE AND COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH CORUT OF KERALA ERNAKULAM

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2 MIDHUN.S.KUMAR S/O. C.S.SURESHKUMAR,VNRA 81, VISHNU NAGAR,POWDIKONAM PO., THIRUVANANTHAPURAM

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R1 BY SRI.ARAVIND V. MATHEW, PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 15.12.2021, ALONG WITH Crl.MC.5759/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.Nos. 5670 & 5759 of 2017 2

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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 ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 15^TH DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943

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CRL.MC NO. 5759 OF 2017

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[AGAINST CC NO. 514/2017 ON THE FILE OF THE CHIEF JUDICIAL

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MAGISTRATE COURT, THIRUVANANTHAPURAM]

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PETITIONER/3RD RESPONDENT:

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JAYASANKAR K

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RESIDING AT TPSRA- 163, MANACAUD, THIRUVANANTHAPURAM, (NAME AND ADDRESS OF 3RD ACCUSED DESCRIBED IN THE COMPLAINT IS SANKAR K, BRANCH MANAGER, AKBAR ONLINE BOOKING PVT.LTD, OUR TOWERS,

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VELLAYAMBALAM,SASTHAMANGALAM P.O, THIRUVANANTHAPURAM.

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BY ADV SRI.R.B.RAJESH

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RESPONDENTS/STATE AND COMPLAINANT:

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

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2 MIDHUN S. KUMAR S/O. C.S SURESHKUMAR, VNRA - 81, VISHNU NAGAR,POWDIKONAM P.O, THIRUVANANTHAPURAM – 695607

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R1 BY SRI.ARAVIND V. MATHEW, PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 15.12.2021, ALONG WITH Crl.MC.5670/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.Nos. 5670 & 5759 of 2017 3

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O R D E R

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[Crl.MC Nos.5670/2017 & 5759/2017]

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

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514/2017 on the files of Chief Judicial Magistrate

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Court, Thiruvananthapuram. Crl.MC No.5670/2017 is

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filed by the accused numbers 1 and 2, whereas Crl.MC No.5759/2017 is filed by the 3^rd accused. (For the

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sake of convenience, the parties and Annexures are referred to as shown in Crl.M.C.No.5670/2107).

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The aforesaid case was registered on the

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basis of Annexure-A private complaint submitted by

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the 2^nd respondent herein, alleging offences punishable under Sections 470, 418, 420, 465, 471 and Section 34 of Indian Penal Code (IPC) read with Section 66A of Information Technology Act, 2000.

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The case of the 2^nd respondent is that, he is residing in Muscat along with his family and his father booked four tickets for Air Arabia on 8/5/2012

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through the online booking system of the first

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Petitioner herein, which is a Company running a travel agency having branches all over the State.

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Crl.M.C.Nos. 5670 & 5759 of 2017 4

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As consideration for the aforesaid tickets, an amount

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of �61,520/-was also collected by the first Petitioner. As per the travel schedule mentioned in the air ticket, a copy of which was sent to the 2^nd respondent by E-mail (Annexure B), the 2^nd respondent and his family were to travel from Muscat to Sharjah in flight No.G9 0118 departing from Muscat at 7:45 PM

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on 8.05.2012 and arriving at Sharjah at 8:40 PM. Thereafter they were supposed to board flight No.G9 0441 departing from Sharjah at 2.05 AM on 9/05/2012 and arriving at Thiruvananthapuram at 7:35 AM on 9/5/2012. As per the travel schedule as mentioned above, the 2^nd respondent and his family boarded flight No.G9 0118 from Muscat at 7:45 PM and arrived at Sharjah on 8:40 PM on 8.05.2012. However when they approached the Airport officials for boarding pass for the connection flight, for onward journey to Thiruvananthapuram, it was informed that their tickets were not booked in flight No.G9 0441

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departing at 2.05 AM on 9/5/2012. It was revealed that the tickets for them were booked in another

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Crl.M.C.Nos. 5670 & 5759 of 2017 5

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flight, departing from Sharjah at 12:40 PM on

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9.05.2012. The 2^nd Respondent obtained a copy of the

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ticket booked for the said flight and it was revealed that Annexure B ticket sent to the Petitioner through the email of the 2^nd Respondent was re-edited and forged.

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consequent to the failure on the part of the 1^st

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petitioner in booking the tickets as per the schedule, which was communicated to them as per Annexure B, they had to wait at the airport for almost 16 hours.

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Thereafter, on 17.05.2012, Annexure D lawyer

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notice was issued by the 2^nd Respondent addressed to the first Petitioner, alleging deficiency of service on their part and also claiming an amount of � 25

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lakhs each for all the passengers, as damages. The

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first Petitioner herein submitted Annexure-E reply

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notice, denying any deficiency of service on their

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part. In the said reply notice, it was clarified by the first Petitioner that the first Petitioner had in

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Crl.M.C.Nos. 5670 & 5759 of 2017 6

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fact booked four tickets for the 2^nd Respondent and his family initially, in the flight which was to depart from Sharjah at 2.05 AM on 9/5/2012 as per the original schedule. The aforesaid ticket was booked on the basis of information submitted to the office of

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the first Petitioner, by Mr S.Suresh Kumar, the father of the 2^nd Respondent herein. While furnishing the details of the passengers, it was communicated by the said Suresh Kumar that the daughter of the 2^nd Respondent is an infant and accordingly the tickets were booked showing the status of the said passenger as an infant. A total fare of 46,800/- was also� collected by treating the said passenger as an infant. Later, it was revealed that the daughter of the 2^nd Respondent was not an infant as per the terms of the Airlines and her ticket was to be booked showing her status as a ‘child’. Accordingly the fare was recalculated as 59,200/-and the same was paid by� the said Suresh Kumar. On account of the change in status, the tickets originally booked by the first Petitioner was to be cancelled and after doing so, an

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Crl.M.C.Nos. 5670 & 5759 of 2017 7

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attempt was made to book fresh tickets in the said flight itself. Unfortunately, in the meantime, the tickets in flight No. G9 0441 which was scheduled to depart from Sharjah at 2.05 AM on 9/5/2012 were sold out and no booking could be made in the said flight. Accordingly the tickets were booked on the next flight. On the basis of fresh booking PNR details

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were updated in the web portal of the first Petitioner, but due to some mistake details of the cancelled booking could not be deleted. It was further explained in the said reply notice that, as the earlier booking remained in the web portal without deleting, the same was happened to be

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transmitted through the web mail to the 2^nd Respondent and this created the confusion.

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However, being dissatisfied with the

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aforesaid explanation, the 2^nd Respondent submitted C.C No 337/2013 before the Consumer Disputes

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Redressal Forum, Thiruvananthapuram seeking a compensation for a compensation of 15,00,000/- for�

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deficiency of service on the part of the 1^st

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Crl.M.C.Nos. 5670 & 5759 of 2017 8

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petitioner and the aforesaid complaint is now pending consideration.

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Thereafter, on 31/07/2014, after expiry of 2 years from the incident, the 2^nd Respondent submitted Annexure A private complaint alleging the offences mentioned above against the petitioners and the

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Learned Magistrate was pleased to take cognizance on the said complaint for the offences under sections

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417, 418, 420, 465, 471 with Section 34 of Indian Penal Code and under Section 66A of the Information Technology Act, 2000. This Crl. MC is submitted by

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the petitioners, in the above circumstances, seeking to quash all further proceedings pursuant to the same. The 2^nd Petitioner/2^nd accused is the Managing Director of the 1^st accused company. The Petitioner in Crl. MC 5759/2017/3^rd accused is the Branch Manager of the first accused.

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Heard Sri. M.Sreekumar, learned counsel

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for the petitioners in Crl.M.C.No.5670/2070,

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Sri.R.B.Rajesh, learned counsel appearing for the Petitioner in Crl.M.C. No. 5759/2070 and Sri. Sudheer

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Crl.M.C.Nos. 5670 & 5759 of 2017 9

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Gopalakrishnan learned Public prosecutor appearing for the State. Even though notice was issued to the 2^nd Respondent in both the above Crl.MCs’, there is no appearance for him despite the service of notice upon him.

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The learned counsels for the petitioners

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contend that, the allegations contained in Annexure A complaint do not disclose any of the offences alleged against the Petitioners. It is contended that, there

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was no dishonest or fraudulent intention on the part of the petitioners so as to attract the offences alleged against them. It was a bonafide mistake occurred while booking the tickets. It is not a case where the ticket was not booked at all, but on the other hand, this is a case where, the tickets were booked in a different flight and the charges collected from the 2^nd Respondent was only the value of the aforesaid ticket along with the service charges. Therefore no case of deception or an inducement with dishonest intention, on the part of the Petitioners are in existence. At the most it is

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Crl.M.C.Nos. 5670 & 5759 of 2017 10

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a case deficiency of service and the 2^nd Respondent

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has already initiated proceedings before the Consumer Forum, which is now pending consideration. The petitioners are also pointing out the delay of 2 years in submitting the private complaint, which is not explained.

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The question that arises here is as to

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whether the offences alleged against the petitioners are attracted or not. Section 415 of Indian Penal Code defines the offence of cheating which reads as

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follows:

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“415. Cheating. —Whoever, by deceiving any person, fraudulently or dishonestly induces the person so 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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Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.”

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In order to attract the offence of cheating, there

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must be a dishonest inducement from the part of the

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accused which resulted in delivery of any property by the complainant in favour of the accused. In this

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Crl.M.C.Nos. 5670 & 5759 of 2017 11

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case, the transaction is in connection with the booking of tickets for travelling from Sharjah to Thiruvananthapuram. It is true that, the ticket which was issued to the 2^nd Respondent and delivered to him

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through email contained booking of a particular flight, whereas the ticket was actually booked for another flight. However, the fact remains that the tickets were indeed booked by the petitioners and there is no allegation on the part of the 2^nd

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Respondent that, any excess amount was collected from him. It is a well settled position of law that, in order to attract the offence of section 420, it must be shown that the accused was having the dishonest or fraudulent intention to deceive the complainant right from the inception. In this case, the travel schedule of the 2^nd Respondent and his family contain two segments, the first one started from Muscat to Sharjah and the 2^nd one was to commence from Sharjah to Thiruvananthapuram. Originally a ticket was issued

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for both the said segments of travel schedule and later it was found that the tickets for the 2^nd

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Crl.M.C.Nos. 5670 & 5759 of 2017 12

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segment was defective. This would rule out the sustainability of allegation of dishonest intention right from the inception. It is not a case where, the petitioners failed to book tickets for them at all, but on the other hand the tickets booked for the 2^nd segment of the travel schedule was on a different flight than originally offered. It is also evident from the records that the petitioners have collected only the amounts towards the value of the tickets and apparently no unlawful gains were made by the petitioners. In such circumstances the explanation offered by the 1^st petitioner through the reply notice issued to the lawyer notice of the 2^nd Respondent, is having some relevance. In the totality of the facts and circumstances of the case, it is discernible that a dishonest intention on the part of the accused is lacking. At the most this is a case of

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deficiency of service on the part of the Petitioners, which would attract only civil consequences. In other words, the dispute between the parties are civil in in nature, and it does not contain any element of

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Crl.M.C.Nos. 5670 & 5759 of 2017 13

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culpability so as to attract the offences punishable under sections 417, 418 and 420, of IPC.

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Some of the other offences alleged are under

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section 465 and 471 of IPC. In the facts are

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circumstances of the case, the same also would not get attracted. Offence under section 465 and 471 are various forms of forgery. It is to be noted that the

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offence of forgery, is defined under section 463 which reads as follows:

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“ 463. Forgery.- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”

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As per the said provision, one of the basic

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requirements for the said offence is making false

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document or false electronic records. Section 464

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deals with the making of false documents, which reads as follows;

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“464 Making a false document. —[A person is said to make

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a false document or false electronic record—

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First —Who dishonestly or fraudulently—

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Crl.M.C.Nos. 5670 & 5759 of 2017 14

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(a) makes, signs, seals or executes a document or part of a document;

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(b) makes or transmits any electronic record or part of any electronic record;

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(c) affixes any [electronic signature] on any electronic record;

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(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature],

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with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

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Secondly— Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

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Thirdly—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.”

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From the aforesaid provisions, it is evident that,

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existence of a dishonest or fraudulent intention is absolutely necessary for making a false document or false electronic record. In this case, on a careful

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analysis of the factual circumstances, I have already observed that, there are no materials to arrive at the conclusion that, there exists any such dishonest intention or fraudulent intention on the part of the

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Crl.M.C.Nos. 5670 & 5759 of 2017 15

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petitioners. This is particularly because, booking of tickets is part of the business of the petitioners. There is no case for the 2^nd respondent, they failed to book the ticket after collecting the amounts. The 2^nd respondent also does not have a case that, the petitioners have collected any excess amount without booking tickets. Only allegation is that, the petitioners have booked the tickets in a different flight than shown in the original ticket issued to him. In this regard, the explanation offered by the petitioners, as to the circumstances under which such booking was made, is a decisive factor, in the matter of attracting culpability upon the accused. While considering the same, it can be safely concluded that, though, it may amount to deficiency of service, the same would not attract any penal consequences and

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hence no offence under section 465 and 471 are attracted.

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The remaining offence is under section 66A

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of the Information Technology Act, which reads as follows;

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Crl.M.C.Nos. 5670 & 5759 of 2017 16

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“66A. Punishment for sending offensive messages through communication service, etc. --Any person who sends, by means of a computer resource or a communication device ,

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(a) any information that is grossly offensive or has menacing character; or

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(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;

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(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages ,

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shall be punishable with imprisonment for a term which may extend to three years and with fine .

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Explanation.--For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.”

¶147

In order to attract the said offence, the information conveyed should be, grossly offensive or of menacing character, or a false information, conveyed with the knowledge of falsity and intended to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will to any person or to mislead any person as to the origin of such message. A careful scrutiny of the allegations contained in the Annexure A complaint

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Crl.M.C.Nos. 5670 & 5759 of 2017 17

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would reveal that, the ticket which was issued in

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this case, though it contained incorrect information, it would not fall under any of the categories mentioned in the above provision. No prudent man can arrive at a conclusion that, a travel agent would convey such a message, with knowledge of its falsity, and with the intention to cause annoyance or inconvenience to it’s customer. In such

¶151

circumstances, I have no hesitation to hold that the aforesaid offence is also not attracted on the allegations contained in Annexure A complaint.

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It is a well settled position of law in this regard that, if the dispute is civil in nature and

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the same is given the colour of a criminal

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litigation, the proceedings can be quashed by invoking powers of this court under section 482

¶155

Cr.P.C. In this case, from careful scrutiny of the documents, the irresistible conclusion possible is that, though the 2^nd respondent is having certain

¶156

genuine grievances, it falls short of a situation inculpating the petitioners herein for the offences

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Crl.M.C.Nos. 5670 & 5759 of 2017 18

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alleged. Such grievances can attract only civil consequences including the claim for damages, for which the 2^nd respondent had already initiated appropriate proceedings. Submission of Annexure A complaint, that too after expiry of two years of the incident, and much after filing a complaint before the Consumer Disputes Redressal Forum, can only be treated as a proceeding intended to exert pressure upon the petitioners herein. Thus, the proceedings in the above Calendar Case are a mere abuse of process of court, and the chances of a successful prosecution thereon are very bleak.

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In the result, the above Crl.M.Cs’ are allowed, Annexure-A complaint (in both Crl.M.C.s’) and all further proceedings in C.C.No 514/2017 on the

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file of the Chief Judicial Magistrate Court, Thiruvananthapuram are hereby quashed.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

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pkk

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Crl.M.C.Nos. 5670 & 5759 of 2017 19

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APPENDIX OF CRL.MC 5759/2017

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PETITIONER’S ANNEXURES:

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ANNEXURE A	CERTIFIED COPY OF COMPLAINT DATED 31.7.2014 FILED BY 2ND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.
ANNEXURE B	TRUE COPY OF THE AIR TICKET ISSUED BY THE 1ST ACCUSED TO 2ND RESPONDENT.
ANNEXURE C	TRUE COPY OF TICKET ISSUED TO THE 2ND RESPONDENT FROM TRAVEL DESK OF SHARJAH AIRPORT.
ANNEXURE D	TRUE COPY OF CERTIFICATE DATED 23.10 2013 ISSUED BY M/S.AKBAR TRAVELS OF INDIA PVT LTD. TO THE PETITIONER.
ANNEXURE E	TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING.
ANNEXURE F	TRUE COPY OF SUMMONS ISSUED TO THE PETITIONER IN CC NO.514/2017 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM DATED 22.5.2017.
ANNEXURE G	TRUE COPY OF COMPLAINT IN CC NO 337/2013 FILED BY 2ND RESPONDENT BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, THIRUVANANTHAPURAM DATED 8/2013.
ANNEXURE H	TRUE COPY OF VERSION FILED BY THE 1ST ACCUSED DATED 3.12.2013 IN CC NO.337/2013 ON THE FILE OF CONSUMER DISPUTES REDRESSAL FORUM, THIRUVANANTHAPURAM.

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Crl.M.C.Nos. 5670 & 5759 of 2017 20

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APPENDIX OF CRL.MC 5670/2017

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PETITIONERS’ ANNEXURES:

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ANNEXURE A: CERTIFIED COPY OF COMPLAINT DATED 31.7.2014 FILED BY 2ND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM ANNEXURE B: TRUE COPY OF AIR TICKET ISSUED BY THE 1ST PETITIONER TO 2ND RESPONDENT ANNEXURE C: TRUE COPY OF TICKET ISSUED TO THE 2ND RESPONDENT FROM TRAVEL DESK OF SHARJAH AIRPORT ANNEXURE D: TRUE COPY OF LAWYER’S NOTICE DATED 17.5.2012 ISSUED TO THE 1ST PETITIONER ANNEXURE E: TRUE COPY OF THE REPLY DATED 1.6.12. FILED BY THE 1ST PETITIONER ANNEXURE F: TRUE COPY OF COMPLAINT IN CC NO.337/2013 FILED BY 2ND RESPONDENT BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, THIRUVANANTHAURAM DATED 8/123 ANNEXURE G: TRUE COPY OF VERSION FIELD BY THE 1ST PETITIONER DATED 3.12.2013 IN CC NO.337/2013 ON THE FILE OF CONSUMER DISPUTES REDRESSAL FORUM, THIRUVANANTHAPURAM

Jayasankar K v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jayasankar K v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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