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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. Narayana Pisharadi, J.
Shibu Mathew – Petitioner
Versus
State of Kerala, Represented By Public Prosecutor and Ors. – Respondents
Crl.MC.No.1113 OF 2018(H)
Decided On : 10-03-2021
Criminal Procedure Code, 1973 - Section 482 - Indian Penal Code, 1860 - Section 420 read with 34 – Offence of Cheating – Ingredients of - Sought for quash of FIR – Dishonest intention – Whether Proved - First accused had made representation to the complainant that he would arrange job for him in Zambia - On basis of such representation, complainant paid a total amount of Rs.1,50,000/- to first accused - Complainant also gave Rs.4,00,000/- to second accused, who is father of first accused - However, accused did not arrange permanent job for complainant as Nursing Tutor in Zambia - They also did not repay him amount obtained from him.
Finding of the Court: purpose of constituting an offence of cheating, complainant is required to show that accused had fraudulent or dishonest intention at time of making promise or representation - In instant case, very fact that petitioner initially arranged temporary job for complainant in Zambia would indicate that he had no dishonest intention at time of making representation to the complainant that he would arrange job for him in Zambia - Though, the job was initially arranged on temporary basis, subsequently, work permit - Absence of any dishonest intention on part of petitioner at time of making promise or representation, no offence under Section 420 of Indian Penal Code has been made out against petitioner - As such, if criminal proceedings are allowed to go on against petitioner, it will amount to abuse of process of law and in order to secure ends of justice, criminal proceedings against him are liable to be quashed -
Result: Petition partly allowed.
ORDER :
The petitioner is the first accused in the case C.C.No.1555/2016 pending in the Court of the Judicial First Class Magistrate, Adoor.
2. Annexure-A1 F.I.R was registered against the petitioner and his wife and his father on the basis of a complaint given by the second respondent (hereinafter referred to also as 'the complainant') before the Dy.S.P, Adoor. After completing the investigation of the case, the Dy.S.P, Adoor filed final report against the petitioner and his father for committing the offence punishable under Section 420 read with 34 of the Indian Penal Code.
3. The prosecution case, as revealed from the final report filed, is as follows:
4. This petition under Section 482 Cr.P.C is filed by the first accused in the case for quashing Annexure-A1 F.I.R and Annexure-A5 final report filed against him.
5. Heard learned counsel for the petitioner and the second respondent and also the learned Public Prosecutor.
6. The petition contains a prayer for quashing Annexure-A1 F.I.R which was registered as early as on 08.07.2015. The petitioner filed this application under Section 482 Cr.P.C only on 16.02.2018, after filing final report in the case. The allegations in Annexure-A1 F.I.R, prima facie, disclose commission of cognizable offences. Therefore, at this stage, I find it not expedient to quash Annexure-A1 F.I.R against the petitioner by invoking the power under Section 482 Cr.P.C.
7. Learned counsel for the petitioner contended that the amount of Rs.1,50,000/-was received by the petitioner from the complainant towards the expenses to be met for arranging job for the complainant in Zambia. Learned counsel would submit that, the petitioner arranged job for the complainant in Zambia and that the complainant worked in Zambia. Learned counsel would further submit that, although only a temporary job was initially arranged on the basis of temporary visa, the petitioner had arranged permanent job for the complainant in Zambia but the complainant did not return to Zambia after he came back from there. In such circumstances, learned counsel would submit that, the offence under Section 420 of the Indian Penal Code will not lie against the petitioner.
8. Learned counsel for the second respondent/ complainant would submit that the promise made by the petitioner to the complainant was that the petitioner shall arrange permanent job for the complainant in Zambia and it was on the basis of such representation made by the petitioner that the complainant gave him Rs.1,50,000/- and Rs.4,00,000/- to his father.
9. Admittedly, the petitioner had received Rs.1,50,000/- from the complainant on the promise that he would arrange job for the complainant in Zambia. Admittedly, the petitioner had arranged a job for the complainant in Zambia on temporary basis.
10. Learned counsel for the second respondent would contend that the complainant went to Zambia and worked there spending his own money and not on the basis of any assistance rendered by the petitioner. There is no basis for this submission. In the statement given by the complainant to the police during the investigation of the case, he has stated that it was on the basis of the transaction with the petitioner that he went to Zambia.
11. The complainant had returned from Zambia on 18.02.2015. Annexures A2(32) and A2(31) documents dated 30.09.2015 would show that work permit in the name of t
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