Allegations of cheating require evidence of fraudulent intent; mere delay and a civil decree indicate misuse of criminal process.

ORDER

The petitioners are the accused in C.C.No.2699/2018 on the file of the Court of the Judicial First-Class Magistrate-VIII, Ernakulam (for short, ‘Trial Court’), which is registered based on a private complaint filed by the 2^nd respondent.

2. The 2^nd respondent’s case, to put it pithily, in Annexure A14 complaint is as follows:

The 4^th petitioner Company is an authorised distributor of premium cars. The petitioners 1 and 2 are the directors and the 3^rd respondent is an employee of the 4^th petitioner Company. On 17.02.2014, the 2^nd respondent had purchased a Porsche Cayenne car from the petitioners for Rs. 1,32,82,400/-, who assured to get the car registered and pay for the insurance. The petitioners received Rs. 21,25,184/- from the 2^nd respondent towards road tax and registration charges. However, the petitioners misappropriated the amount, by fabricating documents and presenting them to the Registering Authority, showing a lower price for the car, and thereby, cheated the 2^nd respondent and the Government. The 2^nd respondent was unable to use the vehicle due to the offences committed by the petitioners. Thus, the petitioners have committed the offences under Sections 406 , 420, 468 and 471 read with Section 34 of the Indian Penal Code .

3. I have heard the learned Counsel for the petitioners, the learned Public Prosecutor and the learned Counsel for the 2^nd respondent.

4. The learned Counsel for the petitioners vehemently argues that, even if the allegations in Annexure A14 complaint are taken on their face value, the same will not constitute the offences alleged against the petitioners. In fact, it was the 2^nd respondent who cheated the petitioners. There is a decree passed by the Court of the Subordinate Judge, Sulthan Bathery, against the 2^nd respondent, directing him to pay Rs.54,01,206/- with interest to the petitioners. It is only to circumvent the decree, to criminalise a civil dispute, and to wreak vengeance on the petitioners that the instant complaint is filed. The fact that the transaction took place as early as on 17.02.2014, but the complaint was filed on 20.02.2017, that too after the petitioners instituted the civil suit, proves the falsity and hollowness of the complaint. Moreover, the complaint is not accompanied by an affidavit, which is mandatory. Furthermore, there is no specific allegation that the petitioners 1 and 2 were in charge of the management of the 4^th petitioner company. Likewise, the 3^rd petitioner is only an employee of the 4^th petitioner company. The complaint is a sheer abuse of the process of the law, and therefore, the entire proceedings may be quashed. It is without comprehending any of these material aspects that the Trial Court took cognizance of the offences and issued summons to the petitioners. Hence, the Criminal Miscellaneous Case may be allowed.

5. The learned Counsel for the 2^nd respondent stoutly opposes the Crl. M.C. He submits that the Crl. M.C is premature because the learned Magistrate has only issued summons to the petitioners. As the offences alleged against the petitioners are punishable for a period exceeding two years, a warrant trial is to be conducted. It is only after the learned Magistrate takes cognizance of the offence that the petitioners’ cause of action to invoke the provisions under Section 482 of the Code of Criminal Procedure (‘Cr. P.C.’, for brevity) arises. According to him, there is no proceeding pending as on today, which principle is well settled by the Hon’ble Supreme Court inVenkatasubramaniam D. and Others v. M.K.Mohan Krishanamachari and Another (2009 KHC 1072) and this Court inMuhammed v. Union of India and o