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2002 DIGILAW 262 (KER)

Rajan v. State of Kerala

2002-04-05

G.SASIDHARAN

body2002
Judgment :- 1. Petitioner is the accused in Crime 276 of 2001 of Pandalam Police Station registered under S.420 of the Indian Penal Code. The above crime was registered on the basis of a complaint given by the 5th respondent in the Court of the Judicial Magistrate of the First Class, Adoor and which was forwarded to the police for investigation under S.156(3) of the Criminal Procedure Code. The petitioner was the Managing Director of a U.A.E. based company by name 'Best Home Contracting Company'. The company was under the absolute control and management of the petitioner and the business done by the company was to engage in building contracts. Sabah Engineering and Marine Services had business transactions with the petitioner and he had awarded many subcontract works to Sabah Engineering and Marine Services for fabricating and erecting various industrial sheds, canteens, labour camps etc. in various places in U.A.E. According to the 5th respondent, the complainant, Sabah Engineering and Marine Services completed the entire projects awarded by the petitioner and handed over the same to him. The 5th respondent is the Works-cum-Legal Manager of Sabah Engineering and Marine Services. 2. According to the 5th respondent, U.A.E. Dirhams of 10,90,866 was due from the petitioner to the 5th respondent and in partial discharge of the liability petitioner issued seven post-dated cheques and another cheque for a total amount of U.A.E. Dirhams of 6,38,069 in favour of Sabah Engineering and Marine Services. All the above cheques were drawn in the account maintained by the petitioner with Commercial Bank International, Main Branch, Dubai, U.A.E. All the above cheques were dishonoured by the bank for the reason that there was no sufficient amount in the account of the petitioner. Even though dishonour of the cheque was informed to the petitioner, he did not make any payment. 3. The 5th respondent would allege that when the cheques were dishonoured the petitioner left U.A.E. with the entire money amounting to crores of rupees. Ext. Even though dishonour of the cheque was informed to the petitioner, he did not make any payment. 3. The 5th respondent would allege that when the cheques were dishonoured the petitioner left U.A.E. with the entire money amounting to crores of rupees. Ext. P-5 complaint was filed by the 5th respondent in the Court of Judicial Magistrate of the-First Class, Adoor pointing out the above facts and alleging that the act of the petitioner in not arranging the funds to honour the cheques and also removing his properties from U. A.E. in cash as well as by other means, amounts to the commission of offence of cheating as defined under S.420 of the Indian Penal Code. The argument advanced by the learned counsel appearing for the petitioner is that the allegations in Ext. P5 complaint are not sufficient to make out the offence punishable under S.420 of the Indian Penal Code. According to him, there was no dishonest intention as mentioned in S.420 of the Indian Penal Code at the time when the cheques are alleged to have bee" given by the petitioner. The submission made is that at the time of issuing the post-dated cheques sufficient amount was not there in the account and that was the reason for issuing post-dated cheques. The post-dated cheques are alleged to have been given because the petitioner was under the impression that he would be able to arrange money by the time the cheques are presented in bank. The failure to make sufficient money available with the bank for encashing the cheques, according to the learned counsel appearing for the petitioner, will not amount to cheating. 4. In Chary v. Martin (1982 KLT 427) it was held that even if there is a deception, civil wrongs which are to be dealt with by Civil Courts are not crimes to be punished by the Criminal Court. That was a case in which a post-dated cheque was issued for the value of goods already delivered. This Court held that a post-dated cheque for payment of goods already delivered is only a promise to pay on a future date and if the promise is broken by the dishonour of the cheque the liability is only civil and no criminal offence will be there. This Court held that a post-dated cheque for payment of goods already delivered is only a promise to pay on a future date and if the promise is broken by the dishonour of the cheque the liability is only civil and no criminal offence will be there. That was a case in which there was no averment in the complaint that at the time when the cheque was issued the petitioners were aware that there was no money in the bank to honour the cheque or the petitioners did not intend to make a sufficient funds available in their account by the time the cheque was to be presented for encashment. This Court held that a subsequent failure to fulfil a promise by itself is not sufficient to infer a dishonest intention which is an essential ingredient for the offence under S.420 of the Indian Penal Code. 5. In Ali v. Mammutty (1988 (2) KLT 880) it was held that the dishonest intention has to be there even at the time of making the promise. In the above decision it was held that a mere deceit will not be sufficient to constitute the offence. It was said in the above decision that mere fraudulent or dishonest inducement alone will not be sufficient to constitute the offence. The Court went on to say that the deceit with the requisite mental element must precede the dishonest or fraudulent inducement. What can be understood from the above decision is that for the purpose of cheating there must be deception which should precede the fraudulent or dishonest inducement and it must be established that the intention of the accused was dishonest even at the time of making the promise. The submission made is that there is no averment in Ext. P-5 complaint that there was dishonest intention on the part of the petitioner even at the time when the cheques were issued. It is true that there is no statement in so many words that there was dishonest intention at the time when the post-dated cheques were issued. But in the complaint there is statement that the act of the accused in not arranging the funds to honour the aforesaid cheques and also removing his properties from U.A.E. in cash as well as by other means, amounts to the commission of offence of cheating as defined under S.420 of the Indian Penal Code. But in the complaint there is statement that the act of the accused in not arranging the funds to honour the aforesaid cheques and also removing his properties from U.A.E. in cash as well as by other means, amounts to the commission of offence of cheating as defined under S.420 of the Indian Penal Code. There is also statement that when the cheques began to get dishonoured the accused absconded and fled from U.A.E. with the entire amount due to the complainant's establishment as well as many others amounting to crores of rupees. The question to be considered is whether on a reading of the entire statements in Ext. P-5 it could be said that the complaint is bad for the absence of specific averment that even at the time of issuing the cheques the petitioner was having the dishonest intention not to pay the amount, 6. What is said in the decision in Chary's case (supra) is that a subsequent failure to fulfil a promise by itself is not sufficient to infer a dishonest intention which is an essential ingredient for the offence under S.420 of the Indian Penal Code and a mere deception or a mere dishonest intention by itself is not a criminal offence. In the decision in Ali's case (supra), this Court, after holding that the dishonest intention must be there even at the beginning, observed that in many cases the existence of mental element even at the time of the promise could only be inferred from the facts and circumstances admitted or proved and it may include the subsequent conduct also. In the decision in Hridaya Ranjan Prasad Verma v. State of Bihar ((2000) 4 SCC 168) the Supreme Court said that 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 and that 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. In Para.15 of the Judgment of the Supreme Court it is stated that the intention of the accused at the time of inducement may be judged by this subsequent conduct also. In Para.15 of the Judgment of the Supreme Court it is stated that the intention of the accused at the time of inducement may be judged by this subsequent conduct also. So, the above decision would go to show that the subsequent conduct of a person, who is alleged to have committed an offence under S.420 of the Indian Penal Code, also can be taken into account for deciding the question whether the dishonest intention was there right from the beginning. 7. Ext. P-5 complaint given in Court was forwarded to the police for investigation under S.156(3) of the Criminal Procedure Code. On the basis of Ext. P-5, a crime was registered under S.420 of the Indian Penal Code by the police and investigation is being conducted. It is for the investigating agency now to collect materials during the investigation and to find out whether the Offence under S.420 of the Indian Penal Code was sufficient materials in Ext. P-5 complaint given by the 5th respondent for setting the law in motion. So, there is no merit in the submission that the complaint as well as the first information report have to be quashed for the reason that there are no sufficient averments in Ext. P-5 complaint. 8. Another point urged by the learned counsel appearing for the petitioner is that investigation cannot be conducted for the reason that the allegation is that the petitioner committed the offence while he was in U.A.E. It was also pointed out that no sanction as envisaged in S.188 of the Criminal Procedure Code was obtained from the Central Government. S.188 of the Criminal Procedure Code says that when an offence is committed outside India by a citizen of India, whether on the high seas or elsewhere or by a person, not being such citizen on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. The contention that investigation cannot be proceeded with is raised on the basis of what is said in the proviso to the above section. The proviso says that notwithstanding anything in any of the proceeding sections of Chapter XIII of the Criminal Procedure Code, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. The proviso says that notwithstanding anything in any of the proceeding sections of Chapter XIII of the Criminal Procedure Code, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. The above proviso does not say that for the purpose of the investigation of the crime also previous sanction of the Central Government is necessary. Relying on the decision of this Court in Shadili v. Uthaman (1988 (2) KLT 191) it was maintained by the learned counsel appearing for the petitioner that for conducting investigation under S.156(3) of the Criminal Procedure Code previous sanction of the Central Government is necessary. In the above decision this Court said that the court's power to inquire into or try an offence committed outside India as per S.188 of the Criminal Procedure Code depends on previous sanction of the Central Government and that the consequences of that, is, the police officers' power to investigate an offence committed outside India would also depend on the previous sanction of the Central Government. In the above decision it was also observed by a learned single judge of this Court that under S.156(3) the Magistrate can order investigation of a case which the court can inquire into and try under Chapter XIII. In the above decision the learned single judge went on to observe that the offence which is alleged to have been committed by the petitioner outside the territorial limits of India could not have been taken cognisance of by the court below or directed to be investigated by the police. In Suresh Chand Jain v. State of U.P. (2001 (1) KLT 623 (SC)) the Supreme Court said that it is before taking cognizance of the offence that an order for investigation under S.156(3) of the Code is made. In Samaruddin v. Assistant Director of Enforcement (1999 (2) KLT 794(FB)) a Full Bench of this Court said that sanction of the Central Government under S.188 of the Criminal Procedure Code is not necessary for the purpose of investigation of a crime alleged to have been committed outside India and that the previous sanction of the Central Government is necessary only when inquiry or trial is conducted in respect of such an offence in India. So, there is no merit in the contention that investigation cannot be proceeded with without obtaining previous sanction from the Central Government. 9. So, there is no merit in the contention that investigation cannot be proceeded with without obtaining previous sanction from the Central Government. 9. Ext. P-3 is a judgment of the Dubai Court which would show that the Court in absentia sentenced the petitioner to undergo imprisonment for a term of two years. On a pointing out the above fact, the submission made for and on behalf of the petitioner is that he should not be tried again for the same offence. Here, the offence is alleged to have been committed outside India and according to the 5th respondent, the offence is punishable under S.420 of the Indian Penal Code. It cannot be said that the conviction by the Court in Dubai is for the same offence. Moreover, in S.300(6) it is stated that nothing stated in that section shall affect the provisions of S.188 of the Code. Art.20(1) of the Constitution also cannot be made applicable in the present case because the conviction is by a foreign Court. In Susanta Mukherjee v. Union of India (1975 Lab.I.C.1385) the High Court of Calcutta held that Art.20(1) is inapplicable where the offence is committed outside India and the conviction is by a foreign Court. In State of Bombay v. S.L. Apte (AIR 1961 SC 578) the Supreme Court said that if the offences were distinct there is no question of the rule as to double jeopardy as embodied in Art.20(2) of the Constitution being applicable. Here, the conviction by the foreign Court cannot be said to be for the offence punishable under S.420 of the Indian Penal Code. So, the investigation that is being conducted by the police on the basis of Ext. P-5 complaint cannot be said to be for the offence for which the petitioner was convicted in Dubai. For the above reasons, the petitioner is not entitled to get quashed Exts. P-5 and P-6. This Original Petition is hence dismissed.