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2000 DIGILAW 479 (KER)

Tomy v. Jaffer

2000-08-31

T.M.HASSAN PILLAI

body2000
ORDER T.M. Hassan Pillai, J. 1. Criminal prosecution has been launched against the petitioners, who are accused Nos. 1 and 2 in C.C. No. 607 of 1999 on the file of Judicial 1st Magistrate Court 1, Hosdrug, by the first respondent filing Annexure A complaint against them and the criminal proceedings thus initiated are sought to be quashed invoking the powers of this Court under S.482 Cr. P.C. which is to be exercised sparingly and with circumspection and that too in rarest of rare cases. 2. The gist of the allegation made in the complaint is that they committed offence punishable under S.420 read with S.34 IPC. The allegations made against them in Annexure A complaint are stated in the Crl. M.C. and therefore it is unnecessary to state before considering the legal principles the precise allegations made against the petitioners by the first respondent in Annexure A complaint. Criminal proceedings are sought to be quashed on the ground that the allegations made in the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the petitioners. The transaction referred to in the complaint is of civil nature and court below ought not have taken cognizance of the offence alleged to have committed by them in Annexure A. 3. The offence alleged to have been committed by the petitioners is punishable under S.420 IPC and the necessary ingredients of offence of cheating defined in S.415 of the Indian Penal code are -- (1) deception of any person; (2)(a) fraudulently or dishonestly inducing that person (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property; or (b)intentionally inducing that person 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. 4. The apex Court has held in Hridayaranjan Prasad Verma v. State of Bihar ( 2000 (4) SCC 168 ) that it is manifest on a reading of S.415 that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. 4. The apex Court has held in Hridayaranjan Prasad Verma v. State of Bihar ( 2000 (4) SCC 168 ) that it is manifest on a reading of S.415 that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. The following observation made by the apex Court in the above cited decision is to be extracted here: "15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." 5. The apex Court laid down the law in G. V. Rao v. L. H. V. Prasad ( 2000 (3) SCC 693 ) thus: "4. "Cheating" is defined in S.415 of the Indian Penal Code which provides as under: "415. The apex Court laid down the law in G. V. Rao v. L. H. V. Prasad ( 2000 (3) SCC 693 ) thus: "4. "Cheating" is defined in S.415 of the Indian Penal Code which provides as under: "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. Explanation. -- A Dishonest concealment of facts is a deception within the meaning of this section." 5. The High Court quashed the proceedings principally on the ground that Chapter XVII of the Indian Penal Code deals with the offences against properties and, therefore, S.415 must also necessarily relate to the property which, in the instant case, is not involved and, consequently, the FIR was liable to be quashed. The broad proposition on which the High court proceeded is not correct. While the first part of the definition relates to property, the second part need not necessarily relate to property. The second part is reproduced below: "415 . .... intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were to 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". 6 .This part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement, such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. 7. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. 7. As mentioned above, S.415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part the inducement should be intentional. As observed by this court in Jaswantrai Manilal Akhaney v. State of Bombay ( AIR 1956 SC 575 ) a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B. ( AIR 1954 SC 724 ) that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered". 6. The apex Court considered the ingredients that are required to be proved to constitute the offence of cheating and laid down the law in Medchal Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. (2000 SCC (Cri) 614). "10. The ingredients required to constitute an offence under S.415 have been lucidly dealt with this Court in the case of Ram Das v. State of U.P. (1970 SCC (Cri) 516) wherein this Court observed as below :- "The ingredients required to constitute the offence of cheating are -- (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived 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 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". 11. 11. While S.415 is an offence of cheating, S.418 deals with cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and S.420 is cheating and dishonestly inducing of property. In order to attract the provisions of S.418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of S.418 or S.420. Mens rea is one of the essential ingredients of the offence of cheating under S.420. As a matter of fact illustration (g) to S.415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract and it is this concept which obviously has weighed with the learned Single Judge. But can the factual situation as narrated above in the longish reproduction of the complaint lend support to the observations of the learned Judge, the answer is a pivotal one but before so doing one other aspect as regards the powers under S.482 Cr.P.C, ought to be noticed. As noted hereinbefore this power is to be exercised with due care and caution and rather sparingly and has been so held on more occasions than one". 7. Thus, it clear from the law laid down by the apex Court that to attract the provisions of S.420 the guilty intent at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of S.418 or S.420. Mens rea is one of the essential ingredients of the offence of cheating under S.420. Mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract. In the first part of S.415 inducing must be dishonest or fraudulent and in the second part the inducing must be intentional and in order to constitute an offence of cheating the intention to deceive should be in existence at the time when inducement was offered. 8. In the first part of S.415 inducing must be dishonest or fraudulent and in the second part the inducing must be intentional and in order to constitute an offence of cheating the intention to deceive should be in existence at the time when inducement was offered. 8. I have to keep in view the following observation made by the apex Court in Rajesh Bajaj v. State NCT of Delhi (1999 SCC (Cri) 401) "9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases)the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (1992 SCC (Cri) 426) this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder: "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice". 9. 9. The settled position of law is that exercise of jurisdiction under the inherent power as envisaged in S.482 of the Code to have the complaint or the charge sheet quashed is an exception rather than a rule and the court has to treat a case for quashing at the initial stage as rarest of rare so as not to scuttle the prosecution. The apex Court considered the question as to when the court can exercise its jurisdiction to scuttle the prosecution in Medchal Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. (2000 SCC (Cri) 615) and held thus: "2 ..... With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensures in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge sheet on the face of does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount. " 10. The inherent powers under S.482 Cr. P.C. should be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen. To exercise powers under S.482 of the Code the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and this Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same and the offence ought to appear ex facie on the complaint. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same and the offence ought to appear ex facie on the complaint. The observations in Nagawwa v. Veeranna Shivalaingappa Konjalgi (1976 SCC (Cri) 507) lend support to the above statement of law: "(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects such as want of sanction or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High court can quash proceedings". 11. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would riot be gone into by the court at its earliest stage. Whether or not the allegations in the complaint are true is to be decided on the basis of the evidence led at the trial. In the matter of exercise of High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of court. This Court must use a proper circumspection and very great care and caution to quash the complaint in exercise of its inherent jurisdiction. It is also now well settled that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. Both criminal law and civil law remedy can be pursued in diverse situations. They are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. It is also now well settled that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. Both criminal law and civil law remedy can be pursued in diverse situations. They are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. In Pratibha Rani v. Suraj Kumar (1985 SCC (Cri) 180) the apex Court observed that, "the object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused on proof of the offence is deprived of his liberty and in some cases even his life. This does not however affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content scope and import". 12. Now I shall reproduce the allegations made in the Complaint: "1. That the complainant is the manager of the Madani Travels Kottachery - Kanhangad. The complainant's Travel Agency has booked two tickets on behalf of Rasheed M.P. and Moideenkunhi C. H. as ticket No. 2:0582006240462 and 1:582006240463 on 1st accused came to the office of the complainant's at Kanhangad and received an amount of Rs. 15,000/-(Rupees Fifteen thousand only) as an advance for the aforesaid ticket. The 1st accused promised the complainant that he will confirm the ticket on 1.4.1999. The 1st accused contacted through the telephone to the 2nd accused in presence of the complainant and confirmed the ticket as "O.K." at the time of receiving the advance. Thereafter on 3.3.1999 the complainant has approached the 2nd accused and confirmed the ticket. The 2nd accused has affixed the seal as OK in the aforesaid Ticket. The complainant has brought the ticket for travelling 1.4.1999 in flight No. K. 1989 Indian Airlines. The complainant has paid the entire amount. The complainant has paid the entire amount. The complainant asked the aforesaid passengers to arrange for the journey. The complainant has shown the ticket to the passengers issued by the accused. The complainant Hameed, M.P. Habeeb, K. H. Muneer and the passengers went to Calicut on 31.3.1999 and stayed at Calicut. The complainant along with passengers went to the Airport on 1.4.1999 at about 7 O' Clock. The complainant asked the aforesaid passengers to arrange for the journey. The complainant has shown the ticket to the passengers issued by the accused. The complainant Hameed, M.P. Habeeb, K. H. Muneer and the passengers went to Calicut on 31.3.1999 and stayed at Calicut. The complainant along with passengers went to the Airport on 1.4.1999 at about 7 O' Clock. The complainant showed the ticket to the Airport authorities. By seeing the ticket the Airport authority said to the complainant that the aforesaid two tickets are not O.K. The ticket is in waiting list. The complainant showed the O.K. status affixed in the ticket. Then the Airport authorities replied it was duplicate and the status in the ticket is in waiting list. The complainant's passengers are not able to travel on the day. The complainant approached the 2nd accused. The accused asked the complainant and passengers to wait for two days. The accused assured the complainant to arrange journey within two days. Believing the words of the complainant along with the passengers have stayed at Calicut for two days. After two days also the accused has not able to confirm the ticket to the complainant's passengers. After two days the complainant made an effort and the complainant sent the passengers to Sharjah. 2. Thereafter the complainant approached the accused and said all the facts. But the accused evading the complainant by saying some or other pretext. 3. The complainant has suffered a lot of mental agony and sufferings due to the illegal and irresponsible act of the accused. The complainant has spent huge amount by way of travelling and accommodation of the passengers. The passengers have lost the job due to the illegal act of the accused. The complainant has paid an amount of Rs. 25,000/-(Rupees twenty five thousand only) to the passengers as compensation due to the irresponsible act of the accused. The complainant has suffered a lot of mental agony and suffering due to the irresponsible act of the accused. The complainant has sustained a loss an amount of Rs.50,000/ - due to the irresponsible act of the accused. 4. The accused have deliberately cheated the complainant. The accused is well aware that the status of the ticket was not OK at the time of affixing seal on the ticket". 13. The complainant has sustained a loss an amount of Rs.50,000/ - due to the irresponsible act of the accused. 4. The accused have deliberately cheated the complainant. The accused is well aware that the status of the ticket was not OK at the time of affixing seal on the ticket". 13. From the allegations made in the complaint it is not possible to hold that the petitioners at the time of making alleged representation regarding the ticket had fraudulent or dishonest intention nor is it discernible from the allegations made in the complaint that the intention to deceive was in existence at the time when the inducement was offered. It is difficult to hold that the allegations made in the complaint even if they are taken at their face value and accepted in their entirety do prima facie constitute any offence or make out a case against the petitioners. Further, it would appear from the complaint that the alleged offence was committed either on 9.3.1999 or on 1.4.1999 and the complaint was filed only on 16.7.1999. No explanation is given in the complaint for the delay of more than three months in filing the complaint. The legal position is well settled that when a prosecution at the initiate 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 in the interest of justice to permit a prosecution to continue. This 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 quash the proceeding even the proceeding even though it may be at a preliminary stage (See Madhavarao v. Sambhajirao ( AIR 1988 SC 709 ). 14. 14. Applying the above laid down principles to the facts of the case I am of the view that the uncontroverted allegations made do not prima facie establish the commission of the offence alleged and it is not expedient and in the interest of justice to permit the prosecution to continue. In my view the chances of ultimate conviction are bleak and therefore no useful purpose is likely to be served by allowing the criminal prosecution to continue. Thus, in order to prevent abuse of the process of court and to secure the ends of justice the criminal proceedings initiated by the first respondent against the petitioners (Annexure A complaint) are to be quashed invoking the powers of this Court under S.482 Cr. P.C. In the result, Annexure A complaint is quashed. Crl. M.C. is allowed.