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2005 DIGILAW 41 (KER)

K. Krishnan v. V. K. Krishna Mohan

2005-01-20

K.HEMA

body2005
Judgment :- The petitioner who is the second accused in C.C.No.481 of 1998 on the file of the Judicial First Class Magistrate’s Court, Alathur seeks to quash Annexure A2 complaint and all proceedings consequent to the filing of the said complaint filed against him by the respondent herein. 2. The offences alleged against him and the absconding co-accused as per the complaint Annexure-A2 are under Section 420 IPC and Section 138 of the Negotiable Instruments Act. The first accused is none other than the wife of the petitioner who filed M.O.P.54 of 1998 before the Sub Court. Pala to declare the marriage as null and void or to grant a decree of divorce. The marriage between the first accused and the petitioner lasted only for two years. 3. The case of the complainant is that the first accused is the wife of the second accused and both of them approached the complainant in December 1997 and requested for a financial assistance to meet the wedding expenses of their daughter which was to take place in the following month. Since the accused were introduced to the complainant by a common friend, the complainant agreed to extend financial assistance sought for by the accused and lent an amount of Rs.90,000/-. Towards the said liability the first accused drew a cheque dated 26.12.1997 for Rs.90,000/- on the Federal Bank, Mathur Branch in favour of the complainant. This was drawn from the joint account of the first accused and the petitioner. 4. The complainant/respondent agreed to advance the amount only on account of the terms and undertaking to repay the amount by the second accused/petitioner. He is a government official being a P.W.D. Engineer. The cheque was subsequently presented to the Bank and it was returned with a memo “funds sufficient”. Thereafter a notice was issued and after complying with the legal formalities a complaint was filed against the petitioner and the first accused under Section 138 of the Negotiable Instruments Act and Section 420 IPC. The specific case of the complainant is that the petitioner has committed an offence under Section 420 IPC and the first accused has committed an offence punishable under Section 138 of the N.I. Act (vide paragraph 5 of Annexure A2). 5. The specific case of the complainant is that the petitioner has committed an offence under Section 420 IPC and the first accused has committed an offence punishable under Section 138 of the N.I. Act (vide paragraph 5 of Annexure A2). 5. Learned counsel for the petitioner vehemently contended that no allegations disclosing an offence under Section 420 IPC are made out against the petitioner as per the complaint and hence he cannot be proceeded against under Section 420 IPC. On going through the complaint I find that none of the ingredients of Section 420 IPC are pleaded in the complaint. There is no case in the complaint that the petitioner deceived the defacto complainant by fraudulently or dishonestly inducing the complainant to deliver the money to him or that the petitioner intentionally induced the respondent to do or omit to do anything which he would not do or omit, if he were not so deceived, and that by which act damage or omission is caused to the respondent. 6. There is absolutely no whisper in the complaint that the petitioner had at any time acted with the intention to induce the respondent to part with money in favour of him. The allegations contained in the complaint would only show that both the petitioner and the first accused approached the complainant through a common friend and requested for financial assistance and Rs.90,000/- was given. The further allegation is that the complainant agreed to advance the amount only on account of the terms and undertaking to repay the amount by the second accused, who is the petitioner herein. The allegations in the complaint make out only a promise to repay the amount and a request for payment. The complainant has no case in the complaint that he was atleast convinced that the petitioner had dishonest intention even at the time of commencement of the transaction. 7. Learned counsel for the petitioner placed reliance upon a decision reported in S.W. Palanitkar v. State of Bihar ((2002) 1 SCC 241) and argued that to make out an offence of cheating, dishonest or fraudulent intention on the part of the offender must be shown to exist at the time of making inducement itself. Mere subsequent failure to keep up a promise cannot be presumed as an act leading to cheating. Mere subsequent failure to keep up a promise cannot be presumed as an act leading to cheating. In this case from the pleadings in the complaint it can only be presumed that there was a promise and a failure to perform the promise subsequently. But the ingredients to constitute an offence of cheating is conspicuously absent in the complaint. It was held in the above decision as follows: “…In order to constitute an offence of cheating the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.” 8. The learned counsel for the petitioner also submitted that to hold a person guilty of offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfill the promise. In State of Kerala v. A.P. Pillai and another (AIR 1973 SC 323), a decision cited by the Learned counsel for petitioner it was held as follows: “To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfill the promise.” 9. In this case if the entire facts disclosed from the complaint are taken into account. I find that there is nothing to presume that offence under Section 420 IPC are made out. The ingredients which are necessary to be established under Section 415 are not established and hence there is nothing in the complaint to show that an offence under Section 420 IPC is committed by the petitioner. In the above circumstances, no purpose will be served by driving the petitioner to stand on trial. It will only almost to an abuse of process of law if the proceedings are continued before the lower court, hence, to meet and ends of justice that the complaint is to be quashed. In the result. In the above circumstances, no purpose will be served by driving the petitioner to stand on trial. It will only almost to an abuse of process of law if the proceedings are continued before the lower court, hence, to meet and ends of justice that the complaint is to be quashed. In the result. (1) The complaint/Annexure A2 in C.C.No.481 of 1998 on the file of the Judicial First Class Magistrate’s Court. Alathur as against the petitioner/second accused alone is hereby quashed. (2) The Judicial First Class Magistrate, Alathur is directed to drop all further proceedings initiated against the petitioner. Petition is allowed.