Bank alleged borrower obtained large UAE loans with intent to defraud, diverted funds and absconded. Petitioner sought quashing of FIR contending it was a mere contractual dispute. Court held dishonest intention at inception was pleaded and investigation was pending; declined to quash.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946
CRL.MC NO. 1511 OF 2021
CRIME NO.119/2021 OF Chandera Police Station, Kasargod PETITIONER/ACCUSED:
ABDUL RAHMAN,
AGED 44 YEARS, S/O. ABDUL AZEEZ, CHENOTH THIRUTHUMMAL, CHANDERA, METTAMMEL, KASARAGOD DISTRICT.
BY ADVS. SRI.M.V.AMARESAN SRI.S.S.ARAVIND SRI.S.SREEKUMAR (SR.)
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
2 ASIN P.S. S/O. SIDHARTHAN, PENAT HOUSE, KOORIKKUZHI, KIPPAMANGALAM, THRISSUR DISTRICT, PIN - 680681.
*3 M/S INVEST BANK, AL ISTIQLAL STREET, ABU DHABI, UAE THROUGH THE POWER OF ATTORNEY HOLDER XSTREAM INTERNATIONAL MANAGEMENT CONSUTANCY, 40/131C, KUNNATH LANE, PALARIVATTOM, KOCHI-682 025, REPRESENTED BY ITS PROPRIETOR, PRINCE SUBRAMANIAN
***(ADDL.R3 IS IMPLEADED AS PER ORDER DATED 17.07.2024 IN CRL.M.APPL. NO.2 OF 2021)**
Crl.M.C. No.1511/21 -:2:-
BY ADVS. SRI.ASHI M.C., PUBLIC PROSECUTOR SRI.JOHNSON GOMEZ SRI.SANJAY JOHNSON SMT.SREEDEVI S.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.07.2024, THE COURT ON 17.07.2024 PASSED THE FOLLOWING:
“C.R.”
Crl.M.C. No.1511/21 -:3:-
BECHU KURIAN THOMAS, J.
Crl.M.C No.1511 of 2021
Dated this the 17th day of July, 2024
ORDER
In this petition under section 482 Cr.P.C, petitioner challenges the crime registered against him as F.I.R. No.119/2021 of the Chandera Police Station, Kasaragod, Kerala.
Crl.M.C. No.1511/21 -:4:-
the accused had promised to repay it in 84 months and also that the amount shall be utilised only for the purpose of the business of his company and the accused had personally undertaken to repay the payment. Induced by the promise of the accused, the bank disbursed the loan amount. However, the accused defaulted in repayment and when the bank officials visited the establishment of the accused, they found that he had diverted the loan amount for his personal purposes without utilising the same for his business. When confronted with it, the accused handed over 84 cheques of Rs.3,25,000/- UAE dirhams each, but the first cheque itself, when presented for encashment, returned dishonoured. Thereafter the accused became unreachable as he switched off his phone and soon absconded from Dubai. On verification, the bank realised that the accused had set up business establishments under different names in India, utilising the money taken from the bank. In the meantime, in a civil suit filed by the bank before the court in UAE, it was held that the outstanding amount due to the bank was 48.898 million UAE dirhams, equivalent to more than Rs. 83 Crores. The accused has thereby cheated the bank and committed the offence alleged.
Crl.M.C. No.1511/21 -:5:-
Crl.M.C. No.1511/21 -:6:-
attorney was executed in favour of another person who has thereafter impleaded in this proceeding as additional third respondent. Additional materials were submitted to the police by the third respondent pointing out that initially an agreement was entered into on 19.06.2016 between the parties and that the accused had nurtured a fraudulent intention to defraud the bank from the very beginning. It was also mentioned that the mental state of the accused at the time of granting loan was understood from the events that followed thereafter and that the intention of the accused was to defraud the bank which was evident from his subsequent conduct.
Crl.M.C. No.1511/21 -:7:-
ultimately cheating it of a substantial amount and that the manner in which it was committed could be unravelled only by a proper investigation.
and New Materials ( ARCI) and Others v. Nimra Cerglass Technics (P) Ltd. and Another (2016) 1 SCC 348), while deliberating upon the difference between a mere breach of contract and the offence of cheating, it was observed that the distinction depends upon the intention of the accused at the time of the alleged incident. If dishonest intention on the part of the accused can be established at the time of entering into the transaction with the complainant, then criminal liability would be attracted.
Crl.M.C. No.1511/21 -:8:-
Crl.M.C. No.1511/21 -:9:-
not necessary that the deception should be by express words as it can even be by conduct.
of UP and Others (2023 SCC OnLine SC 950), it was observed by the Supreme Court that when an accused seeks to invoke the inherent powers under section 482 Cr.P.C. to get the FIR quashed, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough to look into the averments made in the FIR or complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not, as the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and if need be, with due care and circumspection to try and read between the lines. The aforesaid principle was reiterated recently in Achin Gupta v. State of Haryana and Another (2024 INSC 369) also.
(1992 Supp 1 SCC 335) the Supreme Court had, while laying down the principles for quashing the proceedings, observed that the power under section 482 ought to be exercised ex debito justitiae to do real
Crl.M.C. No.1511/21 -:10:-
and substantial justice and the authority of the court exists for the advancement of justice and to prevent abuse of the process of law. In the decision in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others (2021 SCC Online SC 315) it has been added as a note of caution that quashing of FIR is an exception rather than an ordinary rule and the High Court should exercise the powers under S.482 CrPC, sparingly and with circumspection.
Crl.M.C. No.1511/21 -:11:-
complaint and the additional complaint filed by the third respondent, this Court reckons that the complainant has alleged that the accused had, with the intention to defraud the bank, procured loans and thereafter diverted the same to his relatives and other persons and absconded from UAE after switching off his phone and came down to India and commenced businesses. Though in the civil proceedings there is a decree obtained by the bank for repayment of the amount, the same by itself is not a reason to assume that a criminal proceeding will not lie. In certain circumstances, the criminal proceedings as well as civil proceedings can proceed simultaneously. Merely because a civil proceeding has been initiated does not mean that a criminal offence cannot be attracted. From the nature of the complaint and the allegations made thereon, it cannot be prima facie stated that the FIR is totally bereft of any legal basis. As observed in the decisions in Achin Gupta v. State of Haryana and Mahmood Ali and Others v. State of UP and Other (supra), the circumstances emerging from the records of the case over and above the averments in the complaint and in the FIR do indicate that the offence alleged against the petitioner can be made out at least at this stage of the proceedings.
Crl.M.C. No.1511/21 -:12:-
Hence, I find no merit in this Crl.M.C and it is dismissed.
Sd/-
JUDGE
vps
Crl.M.C. No.1511/21 -:13:-
APPENDIX
PETITIONER'S/S' ANNEXURES
ANNEXURE 1 TRUE COPY OF THE FIR NO. 119/2021 DATED 5.2.2021 REGISTERED BY SHO CHANDERA POLICE STATION.
ANNEXURE 2 TRUE COPY OF RELEVANT PAGES OF THE PASSPORT OF THE PETITIONER.
RESPONDENT'S/S' ANNEXURES
Annexure R3A A TRUE COPY OF THE REPRESENTATION DATED 12TH JUNE 2024 SUBMITTED BY THE RESPONDENT NO.3 TO THE STATION HOUSE OFFICER, CHANDERA POLICE STATION
Annexure R3B A TRUE COPY OF THE LETTER NO. FAG/MUS/014/14 DATED 6TH MAY 2014 ISSSUED BY THE RESPONDENT NO.3 TO MANAGING DIRECTOR, M/S HEXA OIL & GAS SERVICE LLC
Annexure R3C A TRUE COPY OF THE LETTER NO. FAG/MUS/08/14 DATED 17TH FEBRUARY 2014 ISSUED BY THE RESPONDENT NO.3 TO MANAGING DIRECTOR, M/S HEXA OIL & GAS SERVICE LLC
Annexure R3D A TRUE COPY OF THE LETTER NO. FAG/MUS/027/14 DATED 14TH JULY 2014
Annexure R3E A TRUE COPY OF THE REPORT AND FINANCIAL STATEMENT FOR THE YEAR ENDED 31 DECEMBER 2015 OF HEXA OIL AND GAS SERVICE LLC ABU DHABI SUBMITTED BY THE PETITIONER TO RESPONDENT NO.3
Crl.M.C. No.1511/21 -:14:-
| Annexure R3F | A TRUE COPY O FINANCIAL STA |
F THE AUDITORS REPORT AND TEMENT AS ON 31ST DECEMBER |
|---|---|---|
| 2017 SUBMITT RESPONDENT NO. |
ED BY ACCUSED TO THE 3 |
|
| Annexure R3G | A TRUE COPY REPORT DATED |
OF THE INHOUSE FINANCIAL 30TH SEPTEMBER 2016 |
| SUBMITTED BY RESPONDENT NO. |
THE PETITIONER TO THE 3 |
|
| Annexure R3H | A TRUE COPY | OF THE FACILITY AGREEMENT |
| BETWEEN THE | PETITIONER AND THE | |
| RESPONDENT NO. | 3, DATED 19-06-2016 |
2 issues framed by the court
Whether a loan default with an alleged fraudulent intention from inception constitutes cheating warranting criminal prosecution despite a civil decree for recovery.
Whether the FIR could be quashed under section 482 Cr.P.C. at the pre-investigation stage.
Colour shows how this judgement treated each authority
Lalit Chadurvedy v. State of Uttar PradeshRelied on¶4
[2024 LiveLaw (SC)150]
Mahmood Ali and Others v. State of UP and OthersRelied on¶10
2023 SCC OnLine SC 950 · Who else cites this
Achin Gupta v. State of HaryanaApplied¶13
2024 INSC 369 · Who else cites this
State of Haryana v. BhajanlalReferred¶11
1992 Supp 1 SCC 335 · Who else cites this
Neeharika Infrastructure Pvt. Ltd. v. State of MaharashtraApplied¶15
2021 SCC Online SC 315 · Who else cites this
2 provisions across 2 enactments
Abdul Rahman
State of Kerala
Asin P.S.
M/s Invest Bank, Abu Dhabi, UAE (through power attorney holder Xstream International Management Consultancy)
Bechu Kurian Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
