Sanjeev Kumar K.P. vs Puthanpurayilabdul Salam

A. Hariprasad, J.—Accused in C.C.No.260 of 2007 on the file of the Chief Judicial Magistrate Court, Kozhikode is before this Court praying to invoke the jurisdiction under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.") for quashing Annexure-A complaint. The offences alleged against the petitioner are punishable under Sections 406 and 420 of the Indian Penal Code (in short, "IPC").

Gist of the allegations is as follows:

An agreement to assign immovable property was executed between the 1st respondent/complainant and the petitioner/accused on 29.12.2005. Total value of the land was fixed at Rs. 29,63,500/-, out of which, Rs. 8,50,000/- was paid by the complainant to the accused on the date of the agreement itself. Balance amount was agreed to be paid subsequently. Six months was the time agreed by the parties for performance of the contract. Since the accused did not perform his part of the contract, the complainant caused to issue a lawyer notice. Accused sent a reply notice with untenable contentions. It was mentioned in the reply notice that a suit as O.S.No.64 of 2006 filed by a third party was pending before the Sub Court, Kozhikode and therein a prohibitory injunction order was passed against alienation of the property by the petitioner/accused. According to the averments in the complaint, the accused, in collusion with another and with an intention to deceive and cheat the complainant, entered into another agreement in respect of the same property with a third party subsequent to the execution of the agreement between the accused and the complainant. The complainant, therefore, contended that the accused is guilty of the above said offences.

Heard the learned counsel appearing for the petitioner/accused and the 1st respondent/complainant.

Learned counsel for the petitioner submitted that going by the averments, no offence is made out and, therefore, the prosecution is an abuse of the process of the court. From the narration of facts made above, it can be seen that the grievance of the complainant is that after executing an agreement to assign the property, the accused entered into another agreement with a third party in order to defeat his rights. ''Cheating'' is defined in Section 415 IPC. It reads as follows:

"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."

Illustration (g) to Section 415 IPC is relevant for our purpose, which is extracted hereunder:

A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

There is no averment in the complaint that the accused intended to cheat the complainant at the time of inception of the transaction. There is force in the submission made by the learned counsel for the petitioner/accused that the dispute is predominantly of a civil nature. It is an admitted fact that that the complainant had approached the civil court for redressal of his grievance against the accused by filing a suit for specific performance. In this conspectus, the decisions rendered by the Apex Court in B. Suresh Yadav Vs. Sharifa Bee and Another, and Paramjeet Batra Vs. State of Uttarakhand and Others, become relevant. It has been lucidly held that where a dispute, which is essentially of a civil nature, is given a cloak of criminal offence and a civil remedy is available, the High Court should not hesitate to quash the criminal prosecution by invoking Section 482 Cr.P.C. in order to prevent abuse of the process of court. This Court followed the said principle in Devadathan and Others Vs. State of Kerala and Another, as well.

Section 406 deals with punishment for criminal breach of trust. No criminal breach of trust as defined under Section 405 IPC does arise in this case. Therefore, I find that the said offence is also not attracted.

In the result, the petition is allowed. Annexure-A complaint pending in C.C.No.260 of 2007 before the Chief Judicial Magistrate Court, Kozhikode is hereby quashed.

All pending interlocutory applications will stand dismissed.