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Shibu Mathew, Pathanamthitta, Represented by his power of Attorney holder Mariamma Baby v/s State of Kerala, Represented by Public Prosecutor, High Court of Kerala, Ernakulam & Others

    Crl. MC. No. 1113 of 2018 (H)

    Decided On, 10 March 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

    For the Petitioner: John Mathew, Mathew John (JMA), Advocates. For the Respondents: R1, B. Jayasurya, Sr. PP. R2, Philip J. Vettickattu, Vineeth Kuriakose, Advocates.



Judgment Text

1. The petitioner is the first accused in the case C.C.No.1555/2016 pending in the Court of the Judicial First Class Magistrate, Adoor.

2. Annexure-A1 F.I.R was registered against the petitioner and his wife and his father on the basis of a complaint given by the second respondent (hereinafter referred to also as 'the complainant') before the Dy.S.P, Adoor. After completing the investigation of the case, the Dy.S.P, Adoor filed final report against the petitioner and his father for committing the offence punishable under Section 420 read with 34 of the Indian Penal Code.

3. The prosecution case, as revealed from the final report filed, is as follows: The first accused had made representation to the complainant that he would arrange job for him in Zambia. On the basis of such representation, the complainant paid a total amount of Rs.1,50,000/- to the first accused. The complainant also gave Rs.4,00,000/- to the second accused, who is the father of the first accused, on 01.06.2014. However, the accused did not arrange permanent job for the complainant as Nursing Tutor in Zambia. They also did not repay him the amount obtained from him. Thus, they cheated the complainant and committed the offence punishable under Section 420 read with 34 of the Indian Penal Code.

4. This petition under Section 482 Cr.P.C is filed by the first accused in the case for quashing Annexure-A1 F.I.R and Annexure-A5 final report filed against him.

5. Heard learned counsel for the petitioner and the second respondent and also the learned Public Prosecutor.

6. The petition contains a prayer for quashing Annexure-A1 F.I.R which was registered as early as on 08.07.2015. The petitioner filed this application under Section 482 Cr.P.C only on 16.02.2018, after filing final report in the case. The allegations in Annexure-A1 F.I.R, prima facie, disclose commission of cognizable offences. Therefore, at this stage, I find it not expedient to quash Annexure-A1 F.I.R against the petitioner by invoking the power under Section 482 Cr.P.C.

7. Learned counsel for the petitioner contended that the amount of Rs.1,50,000/- was received by the petitioner from the complainant towards the expenses to be met for arranging job for the complainant in Zambia. Learned counsel would submit that, the petitioner arranged job for the complainant in Zambia and that the complainant worked in Zambia. Learned counsel would further submit that, although only a temporary job was initially arranged on the basis of temporary visa, the petitioner had arranged permanent job for the complainant in Zambia but the complainant did not return to Zambia after he came back from there. In such circumstances, learned counsel would submit that, the offence under Section 420 of the Indian Penal Code will not lie against the petitioner.

8. Learned counsel for the second respondent/ complainant would submit that the promise made by the petitioner to the complainant was that the petitioner shall arrange permanent job for the complainant in Zambia and it was on the basis of such representation made by the petitioner that the complainant gave him Rs.1,50,000/- and Rs.4,00,000/- to his father.

9. Admittedly, the petitioner had received Rs.1,50,000/- from the complainant on the promise that he would arrange job for the complainant in Zambia. Admittedly, the petitioner had arranged a job for the complainant in Zambia on temporary basis.

10. Learned counsel for the second respondent would contend that the complainant went to Zambia and worked there spending his own money and not on the basis of any assistance rendered by the petitioner. There is no basis for this submission. In the statement given by the complainant to the police during the investigation of the case, he has stated that it was on the basis of the transaction with the petitioner that he went to Zambia.

11. The complainant had returned from Zambia on 18.02.2015. Annexures A2(32) and A2(31) documents dated 30.09.2015 would show that work permit in the name of the complainant was approved by the authorities concerned and the complainant was given intimation to join duty in Zambia but he did not respond.

12. In the above circumstances, the allegations raised against the petitioner in the final report do not make out the ingredients of an offence punishable under Section 420 of the Indian Penal Code.

13. Section 420 of the IPC states that, whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

14. The ingredients to constitute an offence under Section 420 of the I.P.C are: (i) a person must commit the offence of cheating under Section 415 of the I.P.C; and (ii) the person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Cheating is an essential ingredient for an act to constitute the offence under Section 420 of the I.P.C.

15. Section 415 of the IPC states that, 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".

16. The ingredients to constitute an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or (b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. A fraudulent or dishonest inducement is an essential ingredient of the offence of cheating.

17. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In the instant case, the very fact that the petitioner initially arranged temporary job for the complainant in Zambia would indicate that he had no dishonest intention at the time of making the representation to the complainant that he would arrange job for him in Zambia. Though, the job was initially arranged on temporary basis, subsequently, work permit for the petitioner was arranged b

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y the petitioner but the complainant did not go to Zambia to join duty there. 18. In the absence of any dishonest intention on the part of the petitioner at the time of making promise or representation, no offence under Section 420 of the Indian Penal Code has been made out against the petitioner. As such, if the criminal proceedings are allowed to go on against the petitioner, it will amount to abuse of the process of law and in order to secure the ends of justice, the criminal proceedings against him are liable to be quashed. 19. Consequently, the petition is allowed in part. Annexure-A5 final report, as far as it relates to the petitioner, and all proceedings against him based on the final report, are hereby quashed. All pending interlocutory applications are closed.
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