Cheating under Section 420 requires proof of dishonest intent and knowledge of encumbrances, which was absent in this case.

ORDER :

KAUSER EDAPPAGATH, J.

This Criminal Miscellaneous Case has been filed to quash all further proceedings in Annexure-II final report in Crime No.792 of 2016 of Kanjirappally Police Station, now pending as C.C.No.1005 of 2016 on the file of the Judicial First Class Magistrate Court-I, Kanjirappally.

2. The petitioner is the sole accused. The 2^nd respondent is the defacto complainant. The 2^nd respondent filed Annexure-IV private complaint against the petitioner, his wife and his parents before the Judicial First Class Magistrate Court – I, Kanjirappally. The gist of the allegation in the complaint is that the 2^nd respondent purchased a property having an extent of 44.40 Ares belonging to the petitioner for a total sale consideration of Rs.64,06,000/-. It is alleged that at the time of purchasing the property, the petitioner, his wife and parents made the 2^nd respondent believe that there was no encumbrance on the property other than loan liability with Velichiyani Service Co-operative Bank. However, after the registration of the property, it was found that revenue recovery proceedings were initiated against the property towards the loan availed by the father of the petitioner from the Federal Bank, Pulickal Kavala Branch. According to the 2^nd respondent, the petitioner, his wife and parents knowing very well that revenue recovery proceedings were pending against the property, sold the same with the intention to cheat him. Annexure -IV private complaint was forwarded to the police for investigation. The police registered Annexure-I FIR against the petitioner, his wife and parents alleging offence under Section 420 r/w Section 34 of the IPC. The police after investigation filed Annexure-II final report against the petitioner alone alleging offence under Section 420 of the IPC.

3. The learned Magistrate took cognizance of the offence against the petitioner and numbered the case as C.C.No.1005 of 2016. This Crl.M.C. has been filed to quash Annexure-II final report and all further proceedings in C.C.No.1005 of 2016 on the file of the Judicial First Class Magistrate Court-I, Kanjirappally on the ground that even if the entire allegations in the final report is believed in toto, no offence under Section 420 of IPC has been made out. It is further alleged that the entire loan liability of the father of the petitioner with the Federal Bank, Pulickal Kavala Branch has been cleared and now there is absolutely no encumbrance on the property.

4. I have heard Sri.S.Rajeev, the learned counsel for the petitioner and Smt.Maya M.N., the learned Public Prosecutor. Even though notice has been served to the 2^nd respondent, there is no appearance.

5. A reading of Annexure-II final report and the documents on record would show that the property in question was never mortgaged with the Federal Bank. Annexure-VI series of encumbrance certificates in respect of the property procured by the petitioner at the time of sale would show that the property was free from encumbrance. The father of the petitioner had availed a loan from Federal Bank by mortgaging his own property. The petitioner stood as guarantor for availing the said loan. Since the father of the petitioner failed to repay the loan, revenue recovery proceedings were initiated against him, as well as the guarantors, including the petitioner. Consequently, revenue recovery proceedings were initiated against the property of the petitioner also, which was sold to the 2^nd respondent. However, the fact remains that the property was not mortgaged or offered as security for availing the loan by the father of the petitioner. On the other hand, a different property belonging to the petitioner's father was mortgaged for