IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 11^TH DAY OF JANUARY 2024 / 21ST POUSHA, 1945 CRL.APPEAL NO. 293 OF 2018 AGAINST THE JUDGMENT DATED 08.05.2015 IN CC 24/2012 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -II, KANNUR Crl.L.P. 120/2018 OF HIGH COURT OF KERALA APPELLANT/COMPLAINANT:

K. SHAMSHADA W/O ABDUL RAZAK, 'SAFIYAS', KURUVA, PO KADALAYI,KANNUR DISTRICT.

BY ADVS.

SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA RESPONDENTS/ACCUSED & STATE:

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM -682031.

2 PALLITHAZHATH MUHAMMED SHAFI, S/O ALI, PALLITHAZHATH HOUSE, PUZHAMBRAM, BIYYAM PONNANI, MALAPPURAM DISTRICT-679 577.

3 ALI PALLITHAZHATH, AGED 59 YEARS, PALLITHAZHATH HOUSE, PUZHAMBRAM, BIYYAM PONNANI, MALAPPURAM DISTRICT-679 577.

R1 BY SMT.PUSHPALATHA M.K, SR.PUBLIC PROSECUTOR R2 & R3 BY SRI.BABU S. NAIR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 20.12.2023, THE COURT ON 11.01.2024 DELIVERED THE FOLLOWING:

P.G. AJITHKUMAR, J.

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Crl.Appeal No.293 of 2018 ----------------------------------------------------

Dated this the 11th day of January, 2024

JUDGMENT

This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). The appellant is aggrieved by the judgment dated 08.05.2015 of the Judicial Magistrate of the First Class-II, Kannur in C.C.No.24 of 2012. Respondent Nos.2 and 3 were the accused and they were acquitted. The correctness and legality of the said judgment of acquittal are assailed in this appeal.

2. The case arose on a complaint filed by the appellant in protest of a refer report submitted by police after investigation into the matter. The respondent Nos.2 and 3 were tried for an offence punishable under Section 420 read with Section 34 of the Indian Penal Code, 1860 (IPC). At the trial, PWs.1 and 2 were examined and Exts.P1 to P7(b) were marked. Respondent Nos.2 and 3 were examined under Section 313 of the Code. They maintained that they were innocent. The 2^nd respondent further stated that his cheque book was illegally obtained by the husband of the appellant, while they were residing together in the Gulf and misusing two of such cheques, this case has been foisted. No evidence was let in by respondent Nos. 2 and 3.

3. The court below, after considering the evidence, held that the prosecution failed to prove commission of the offence of cheating. The essential reason for recording acquittal of respondent Nos.2 and 3 is that materials are insufficient to establish that at the time of making payment, respondent Nos.2 and 3 had a fraudulent intention to defraud the appellant. It was also held that when Exts.P2 and P3 cheques were issued, it was quite inappropriate to attribute fraudulent intention on their part at the inception of the transaction.

4. The appellant assails the said findings. It is the contention of the appellant that in the light of the evidence let in by her, the intention of respondent Nos.2 and 3 from the very beginning of the transaction to defraud her is evident. But the court below failed to appreciate the evidence in the proper perspective. When the assurance was to make the husband of the appellant a partner of the business proposed to be started by the 2^nd respondent in Bahrain and his commencing the business later on his own name is sufficient evidence to establish his fraudulent intention and the consequent inducement to pay him Rs.20 lakhs. If respondent Nos.2 and 3 had no intention to defraud, Exts.P2 and P3 would have been honoured. That also did not happen. On the said grounds the appellant urges that the impugned judgment is wrong and against the true facts requiring interference by this Court.

5. Heard the learned counsel for the appellant, the learned Public Prosecutor and the learned counsel for respondent Nos.2 and 3.

6. The precise allegations in the complaint are that the

2^nd respondent assured to add the husba