JUDGMENT

The appeal has been filed by the complainant in C.C.No.165 of 2002 before the Judicial First Class Magistrate Court, Kuthuparamba challenging the judgment dated 07.07.2005, whereby the 1st respondent was acquitted by the court below. According to the appellant, the appellant came to know that the 1st respondent is engaged in arranging visa for persons who intend to migrate to the gulf countries for the purpose of employment. It is the case of the appellant that he had approached the 1st respondent during December, 2001 for the above purpose and the 1st respondent demanded a sum of Rs.60,000/- for arranging the visa and had informed the appellant that a medical report and a copy of the passport had to be made available. It is further submitted that an agreement had also been executed between the parties on 03.01.2002 regarding the above transaction. According to the appellant, even though he had approached the accused on many occasions, the accused did not hand over the visa as promised. It is on the basis of the above incident that the appellant filed a complaint alleging that the 1st accused has committed offence punishable under Section 420 IPC. The appellant led evidence by examining himself as PW1 and PWs 2 and 3 as persons who have witnessed the transaction. Exts.P1 to P3 were marked. The court below found that the evidence on record is not sufficient to convict the accused for offence under Section 420 IPC. It is aggrieved by the above judgment that the appellant is before this Court.

2. Heard Sri P.P.Ramchandran, learned counsel appearing on behalf of the appellant and Smt.Sylaja, learned Public Prosecutor appearing for the 2nd respondent State. 3. It is well settled that to constitute the offence under Section 420 IPC, there should be a dishonest intention from the beginning of the transaction itself. Mere breach of contract cannot give rise to criminal prosecution under Section 420 IPC. (See the decision in Sameer Sahay v.

State of UP reported in [(2018) 14 SCC 233]. It is seen from the evidence that after entering into an oral agreement regarding the arrangement for a visa, the parties had also entered into a written agreement, which has been proved by Ext.P1. As per Ext.P1, the 1st respondent has stated that she has received Rs.10,000/- from the complainant, on behalf of her husband, who has agreed to arrange a visa for the complainant. It also says that a photocopy of the visa is handed over and that if the complainant is not able to get the job of cook which is promised, the amount will be repaid. It is further stated that if there is failure to return the money, the 1st respondent's property can be proceeded against. A reading of Ext.P1 would show that the basic requirements for an offence under Section 420 are not available in the case on hand and the remedy if at all is for the appellant to approach the appropriate civil court against any breach of the contract.

4. In the above circumstances, I am of opinion that the 1st accused cannot be proceeded under Section 420 IPC. I agree with the finding of the court below that the necessary ingredients for the offence are not available and the very fact that the parties have entered into an agreement wherein the liability for breach is also contemplated shows that the accused did not have a dishonest intention at the time of entering into the transaction. The judgment of the court below does not warrant any interference in this appeal. The appeal fails and the same is hence dismissed.

In the circumstances of the case, there will be no order as to costs.