Subramaniyan and Meenakshi Ammal vs State of Kerala and S. Viswanathan

T.R. Ramachandran Nair, J.—Both the petitioners are seeking to quash the proceedings against them in C.C. No. 239/2003 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram. The 2nd respondent herein is the complainant therein. It was a case where a private complaint was filed by the de facto complainant which was forwarded for investigation u/s 156(3) of the Code of Criminal Procedure. Annexure-A1 is a copy of the First Information Report wherein there are four accused persons. A copy of the refer charge is produced as Annexure-A2. Thereafter a protest complaint was filed as per Annexure-A3. After taking the sworn statement of the de facto complainant, the case was taken into file as C.C. No. 239/2003. It is a case where the allegation is that the accused 1 and 2 namely, petitioners herein were having landed property measuring 41.2 cents. For finding out the purchasers of the said property, they approached the de facto complainant and promised him to pay 1% of the sale proceeds as commission. The 4th accused was the agent of the 3rd accused. The 4th accused approached the complainant and told him that the 3rd accused was interested to purchase the property. They also promised that 1% of the purchase amount will be given to him as commission.

After execution of the document, accused 1 and 2 received the amount. Thereafter the complainant approached the 1st accused for payment of commission who refused to pay the same. It is stated that the de facto complainant then approached the 1st accused but even thereafter the amount was not paid. It is averred in the Crl. M.C. that the accused 1 and 2 are permanently residing in Chennai and they wanted to dispose of their property. It is also stated that no offence u/s 420 of the Indian Penal Code is made out.

Heard both sides. It is pointed out that the accused 3 and 4 had approached this Court by filing Crl. M.C. No. 4594/2003 which was allowed quashing the proceedings against them as per Annexure A6. It is submitted that the finding therein are relevant on the question as to whether the ingredients of Section 420 IPC are attracted or not. In Annexure A6 order, this Court has held as follows:

It is trite 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. It must be established that the accused had dishonest intention at the time when the offence is said to have been committed. Even if the promisor fails to keep up his promise at a later stage, a culpable intention to cheat cannot be inferred. Breach of promise is a civil wrong. The promise can always sue the promisor for damages. But the promisor cannot be prosecuted in a criminal proceeding unless the intention to cheat at the very inception of the transaction is established by making available cogent materials on record. In a transaction relating to sale of an immovable property, the parties to the agreement for sale may fall out at a later stage for various reasons. Unless and until the complainant establishes that the accused had nurtured an intention to cheat him at the initial stage itself when the parties began the parleys and thereby induced him to deliver any property on the strength of some false promise, or such other acts contemplated u/s 415 IPC, it cannot be said that the accused is guilty of the offence punishable u/s 420 IPC. ( Hridaya Ranjan Pd. Verma and Others Vs. State of Bihar and Another, and G.V. Rao Vs. L.H.V. Prasad and Others, ).

Evidently, the above findings are attracted as far as the petitioners are also concerned. It is a case where the complainant has not succeeded at least prima facie that the accused had any dishonest intention to cheat him at the initial stage itself. The petitioners were owners of the property and evidently the property was purchased by the 3rd accused and it appears that the 3rd accused purchased the property through the assistance of the 4th accused. Both of them have been exonerated from the criminal liability, as per Annexure-A6 order. I respectfully agree with the view taken therein. In a matter like this, it cannot be said that the ingredients u/s 420 IPC are attracted. Learned counsel for the de facto complainant submitted that the complaint made by him is justified and therefore, the offences are made out. But, going by the admitted facts, no offence is made out. The Crl. M.C. is allowed. The proceedings in C.C. No. 239/2003 on the file of the Judicial First Class Magistrate

Court-II, Thiruvananthapuram against the petitioners will stand quashed.