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2003 DIGILAW 161 (KER)

T. P. Amina v. Dr. P. Nalla Thampy Thera

2003-02-28

M.R.HARIHARAN NAIR

body2003
Judgment :- The petitioners-a couple-are the accused in C.C.No.660/96 of the Judicial First Class Magistrate's Court, Sultan Battery. The prayer is to quash the further proceedings in the aforesaid case involving the offences under Sections 415 and 417 of the Indian Penal Code. 2. The 1st respondent herein, in Annex.A private complaint filed on 20.9.96, alleged that as against the assurances given on 15/7/1988 when the present 1st petitioner's building bearing No.802 was let out to him by her husband, who is the 2nd petitioner herein, the electric connection and water supply to the building were cut off and that there was fraud and breach of trust involved in the matter. It was also alleged that this was a premeditated act on the part of the accused and that deception was practiced in the matter of cutting off electrical supply. 3. In his sworn statement the complainant stated that while practicing as a Doctor he was offered two rooms in the said building; that it was let out to him on condition that he should pay rent of Rs.1,150/- per month out of which Rs.75/- was for water supply and Rs.75/- was for electricity charges; that there was no limitation with regard to the quantity of electricity or water that could be consumed by the tenant; that it was therefore that he paid a sum of Rs.25,000/- as advance which was covered by a receipt and that as against the said promise given by the 2nd accused on behalf of the 1st accused, electricity was cut off on 23/6/1994 followed by obstruction to water supply effected on 23/2/1995. 4. It was based on the aforesaid sworn statement that the learned Magistrate took cognizance of the offence on 5.6.97. 5. The learned counsel for the petitioners submitted that what is involved, at the most, is only a breach of contract which will not attract any penal provision and that for attracting the offences, under Secs.415 and 417 what has to be looked into is the existence of criminal intent at the time of the lease in 1988 and that as long as the complainant has no case that there was such criminal intent on the part of either of the accused in the year 1988, the offences could not be sustained. It is also pointed out that the complaint was filed at a time when the complainant had already approached the Accommodation Controller for restoration of the amenities which itself was in the course of Rent Control proceedings seeking eviction of the complainant. According to him, the present proceeding is an attempt to misuse the penal provisions and amounts to abuse of the judicial process of the court. 6. The question for consideration is whether on the averments in Annex.A complaint and accepting that all the allegations contained therein are taken as proved, that offences under Secs.415 and 417 could be sustained? 7. To prove the promises given at the time of commencement of tenancy the complainant produced before court three receipts. The first among them (Document No.4) states that a sum of Rs.1,000/- was received as rent for November, 1988 for two rooms adjacent to the V.A.H.M. X-Rays and the landlord received Rs.150/- towards water and electricity charges for the month of August, 1988 by way of permanent fixed tariff. 8. In the second receipt (Document No.5) it was mentioned that a sum of Rs.1,150/- was received from the complainant to cover rent of Rs.1,000/- and Rs.150/- towards water and electricity charges for the month of June 1990. 9. In the third receipt (Document No.6) also the reference was to receipt of Rs.1,150/- out of which Rs.150/- was towards water and electricity charges for the month of September, 1989. 10. The pleadings in Annexure-A go to indicate that while there was an understanding or even promise that the complainant, as a tenant, would be provided with water and electricity charges at a cost of Rs.150/- per month, these were cut off subsequently with effect from 23/2/1995 and 23/6/1994 respectively. It was alleged that the withdrawal of the said facilities was well planned and premeditated act done with the mala fide intention to harass the complainant. That there was Rent Control proceeding seeking eviction of the complainant filed against him and that the complainant had already approached the appropriate forum for restoration of the amenities were also admitted in the complaint. 11. That there was Rent Control proceeding seeking eviction of the complainant filed against him and that the complainant had already approached the appropriate forum for restoration of the amenities were also admitted in the complaint. 11. In para-11 it was alleged that it was pursuant to a false assurance that water would be supplied at normal rate perpetually that he parted with a sum of Rs.25,000/- as advance and that there was deception in the matter of cutting off water supply and electricity which was done with the mala fide intention to force the complainant to surrender the rented premises. In para-18 of the complaint there was an allegation that cutting off electricity was done after substitution of the electricity meter. However, there was no mention of that fact in the sworn statement and hence it is unnecessary for this Court to go into the question whether there was any such act while considering the sustainability of the order of the learned Magistrate in taking cognizance of the offence. 12. In paras-21 to 25 of the complaint the averments of the landlords in the various proceedings are quoted and in para-26 it is alleged that criminal intimidation was practiced on the staff of the complainant; but it is unnecessary to go into that aspect also in the present proceeding because the cognizance taken by the learned Magistrate does not include the offence relating to criminal intimidation. Nor is it necessary to go into the pleadings in the previous cases because such pleadings cannot provide any cause of action to the complainant with regard to the offences under Secs.415 and 417 of the IPC for which alone cognizance has presently been taken. In para-45 it is stated that the offences in question were committed under pressure from the Chief Secretary of this State and from certain other vested interests and Muslim fundamentalist organizations. In para-46 the allegation is that there was collusion between the accused and the Government of Kerala which is evident from the fact that the petition for restoration of amenities filed on 30/3/1995 was not promptly acted upon. 13. In para-46 the allegation is that there was collusion between the accused and the Government of Kerala which is evident from the fact that the petition for restoration of amenities filed on 30/3/1995 was not promptly acted upon. 13. What is evident from a persual of Annexure-A complaint which runs to 20 pages is that wild and wanton allegations are made against the accused as also against the Chief Secretary and the Government of Kerala itself and that the substantial grievance of the petitioners is only that there was breach of contract in so far as the complainant alleged that under the rental arrangement of 1988 the present petitioners had undertaken that they would go on providing water and electricity without any limitation to the complainant perpetually for a sum of Rs.150/- p.m. The receipts produced in the case would indicate that in the absence of separate water and electricity meters installed in the premises of the complainant who is the landlord had initially accepted a sum of Rs.150/- to cover up the water electricity charges. Assuming for a moment that there was a contract for supply of water and electricity on perpetual basis, then also violation thereof would not attract penal provisions of Sec.415 which is the only substantial offence for which cognizance was taken. Sec.417 is only the provision relating to punishment for the offence under Sec.415 and as such what can be looked into is only whether there is even prima facie maintainability of the offence under Sec.415 as against the present petitioners going by the averments in Annexure-A complaint. 14. Sec.415 of the IPC provides as follows: "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." Explanation.-- A dishonest concealment of facts is a deception within the meaning of this section." 15. The ingredients to be proved in such case are: (i) deception of any person (ii) fraudulent or dishonest inducement to the person deceived to deliver any property to any person or (iii) intentional inducement to the person deceived to do or omit to do anything which he would not to do or omit if he were not so deceived. 16. Dishonest intention refers to intention to make wrongful gain to one person or wrongful loss to the other. 17. Title of the petitioner over the building and capacity to create lease there over is not a disputed fact at all. Breach of a rental arrangement under which advance rent is received, even if it provides for supply of water and electricity to the tenant for a price, cannot at all amount to the offence of cheating as long as the complaint has no case that the landlord had fraudulent intention of deceiving the complainant at the time of entering into such transaction of lease which in the instant case was in the year 1988. That there was no such intention to mislead the complainant is obvious from the fact that under the receipts produced by the complainant himself payments were accepted for the supply of electricity and water charges and that service was actually provided to the tenant. That shows that the landlord did have the intention to go by his words. The withdrawal of the facilities was much later and pursuant to failure to pay the rent. The complainant, understanding the position of law had approached the Accommodation Controller for restoration of the amenities when those events took place nearly six years after the commencement of the tenancy. It is to be remembered here that the intention to deprive the first respondent of the amenities in question, if at all it was formed, arose after the tenant himself committed default in payment of rent and not on 15.7.1988. 18. S.W.Palanitkar v. State of Bihar ((2002) 1 SCC 241) is authority for the proposition that to attract the offence under Sec.415 intention must be shown to exist at the time of making of the inducement and that mere failure to keep up promise subsequently would not amount to the offence of cheating. 18. S.W.Palanitkar v. State of Bihar ((2002) 1 SCC 241) is authority for the proposition that to attract the offence under Sec.415 intention must be shown to exist at the time of making of the inducement and that mere failure to keep up promise subsequently would not amount to the offence of cheating. The complainant cannot therefore seek to establish the offence alleging that six years after the commencement of the lease there was failure to keep up the promise regarding supply of water and electricity. No criminal intent can be presumed in such matters especially when it is a matter of common knowledge that there would be periodical increases in the charges for water and electric supply imposed by the Government from time to time and it is only natural that the landlord would also attempt to pass on such burden to the tenants. 19. Limitation aspect is also against the first respondent. If it is contended for arguments sake that the cause of action commenced on 15.7.88 (he has no such case) the offence under Section 417 of the IPC being one punishable with imprisonment for 1 year or fine or both, the limitation period of one year arising by application of Section 468(2)(b) of the Cr.PC. expired on 15.8.89. The deception alleged in para 12 of the complaint was in the matter of cutting of water and electricity on 23.2.1995 and 23.6.1995 respectively. The limitation, thus has set in atleast on 23.2.1996. The complaint filed in this case was only on 16.9.1996. Section 470 of the Cr.PC cannot go to the rescue of the first respondent as it covers only period of prosecution in courts instituted earlier. 20. Haridaya Ranjan Prasad Verma v. State of Bihar ((2000) 4 SCC 168) dealt with a similar request for quashing of a complaint involving the offence under Sec.415. That arose from a contract for sale of land by the appellant to the respondent No.2-Society. The cheque given by the respondent bounced and that resulted in a criminal complaint alleging the offences under Secs.406, 420 and 120-B IPC. As a counterblast the respondent filed a complaint alleging the offences under Secs.418, 420, 423, 504 and 120-B IPC against the appellant. The cheque given by the respondent bounced and that resulted in a criminal complaint alleging the offences under Secs.406, 420 and 120-B IPC. As a counterblast the respondent filed a complaint alleging the offences under Secs.418, 420, 423, 504 and 120-B IPC against the appellant. It was held that 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 the 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 also shown to have existed right at the beginning of the transaction itself. 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. It was held that mere failure to keep up promise subsequently alone would not attract the offence under Sec.415 of the IPC. 21. On a perusal of Annexure-A complaint, I am not satisfied that even accepting the averments of the complainant as they are, there is any scope for establishing the offence under Sec.415 IPC punishable under Sec.417 IPC. The first respondent has correctly approached the different authorities who could provide him the remedies available under law. The present complaint is obviously an attempt to misuse the process of the court and to harass the landlord. The learned Magistrate has erred in taking cognizance of the offence under Secs.415 and 417 IPC. Continuance of the proceedings pursuant to the order passed by the Judicial Fist Class Magistrate's Court-I, Sulthan Battery amounts to an abuse of the process of the Court. No useful purpose will be served by continuing the same because even accepting all the averments in Annex.A as proved, there is no possibility at all for a conviction for the offence under section 417 of the IPC. In the circumstances, the petition is allowed and further proceedings in C.C.No.660/96 pending before the Judicial First Class Magistrate's Court-I, Sultan Battery are quashed.