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2000 DIGILAW 376 (KER)

Pulanji Kamalakshi v. Urada Rugmini

2000-07-20

D.SREEDEVI

body2000
ORDER D. Sreedevi, J. 1. Petitioner is the accused in C.C.No.23/98 on the file of the Judicial First Class Magistrate Court, Taliparamba. The first respondent is the sister inlaw of the petitioner, who is the complainant in the above case. The complaint was filed for prosecuting the petitioner under S.420 IPC. The complaint of the petitioner therein is that the petitioner's husband Vasudevan, who was working as an Assistant Executive Engineer in K.S.E.B., died while in service, in April, 1991. He had left behind his mother Lekshmi, petitioner and two sons as his legal heirs. In order to get the service benefits of Vasudevan, mother Lekshmi executed a Power of Attorney in favour of the petitioner on 16-9-1991. Accordingly, the petitioner received the service benefits. Out of that, the petitioner had given 1/4 share to mother Lakshmi. 2. According to the petitioner, mother Lekshmi received her due share of the benefits. While so, on 24-1-1997 Annexure 1 lawyer notice was issued to the petitioner on behalf of Lakshmi stating that the registered will as well as the Power of Attorney executed by her are thereby cancelled and the petitioner shall not thereafter act as her Attorney. After that, the petitioner received Annexure-II registered lawyer notice issued at the instance of the first respondent herein stating that the property left by the deceased Vasudevan has to be partitioned into four equal shares and one such share shall be allotted to the petitioner. 3. It is mentioned in Annexure II that eventhough the petitioner received the service benefits, due share has not been given to the mother and hence she has filed a complaint under S.420 IPC against the petitioner. It is also mentioned in Annexure II that the petitioner, her parents and the KSEB officials cheated her mother. The petitioner sent Annexure III reply. The petitioner later came to know that a non bailable warrant has been issued against her. She entered appearance and obtained bail. Annexure IV is the copy of the complaint filed by the respondent. The learned magistrate conducted an enquiry under S.202 Cr.P.C. by examining two witnesses and taken cognizance of the offences. Therefore, the petitioner has filed this Crl.M.C. to quash the complaint on various grounds. 4. According to the petitioner, since the allegation in the complaint as well as the oral testimony, if taken as a whole, will not attract S.420 IPC. The learned magistrate conducted an enquiry under S.202 Cr.P.C. by examining two witnesses and taken cognizance of the offences. Therefore, the petitioner has filed this Crl.M.C. to quash the complaint on various grounds. 4. According to the petitioner, since the allegation in the complaint as well as the oral testimony, if taken as a whole, will not attract S.420 IPC. Therefore, it is submitted that the learned Magistrate ought not have taken cognizance against the petitioner, since the whole allegation is focused on the alleged withholding of the due share of the service benefits of deceased Vasudevan to the mother of the complainant. The remedy of the complainant is to file a suit for account or suit for partition. It is also submitted that there is no elements of criminal offence in this transaction. 5. Annexure IV is the complaint filed by the respondents before the Trial Court. On going through the complaint, what I find is that the respondent's mother has a right to claim her due share of the service benefits of the deceased and also over the property belonging to the deceased. Learned counsel for the petitioner invited my attention to the decision reported in Madhavrao Jiwaji Rao Scindia and another, etc. v. Sambhajirao Chandrojirao Angre and others, etc. ( AIR 1988 SC 709 ) to quash criminal proceedings. In that case the Apex Court held as follows: "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 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 to quash the proceeding even though it may be at a preliminary stage." 6. In order to attract S.420 IPC., the essential ingredients to be satisfied by the prosecution are : (a) A person cheats: (b) He thereby dishonestly induces the person deceived - (i) to deliver any property to any person, or (ii) to make other 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. S.415 IPC defines cheating. The ingredients required to constitute the offence of "cheating" under S.415 are: (i) There should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) The person so deceived should be intentionally induced to do or 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), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 7. Here in this case, in the year 1991, the service benefits of the petitioner's husband were received by the petitioner for and on behalf of Lekshmi also as per the Power of Attorney deed executed by her. Till 1997, there was no complaint against the petitioner. In 1997, after 6 years, complaint has been filed for and on behalf of the mother inlaw by the respondent on the allegation that the petitioner cheated her mother inlaw. There is absolutely nothing in this case to show that the mother was made to deliver any property by dishonest inducement. On going through the evidence of the witnesses and also the complaint, I do not find any criminal mens rea in the petitioner to commit an offence of cheating, as at the time of collecting the benefits she was given lawful authority. She has received the amount as per the Power of Attorney in her favour. The complainant, if at all, has a right, that can only be agitated in a suit for accounts or in a suit for partition. Such a suit has to be filed within three years from the date of receipt of the benefits. Prima facie, the complaint does not make out a case of cheating. The complainant, if at all, has a right, that can only be agitated in a suit for accounts or in a suit for partition. Such a suit has to be filed within three years from the date of receipt of the benefits. Prima facie, the complaint does not make out a case of cheating. Therefore, in the light of the decision of the Apex court, this criminal complaint is liable to be quashed. In the result, this Crl.M.C. is allowed and the criminal complaint is quashed.