IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 849 of 2008()
1. MUHAMMED ASHRAF, S/O.ASSINAR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE SUB INSPECTOR OF POLICE, PAMBADY.
3. SIBY JAMES, MANAGER, DALIA TOURIST
For Petitioner :SRI.P.B.SAHASRANAMAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
------------------------------------------
CRL.R.P. NO. 849 OF 2008
------------------------------------------
Dated this the 20th day of October, 2008
O R D E R
The question for consideration is whether in the absence
of a specific case that at the time when the money was delivered,
there was an inducement with an intention to cheat on the part
of the accused, an offence under section 420 of Indian Penal
Code is attracted. Second respondent lodged a complaint before
Judicial First Class Magistrate, Kottayam alleging that petitioner
committed an offence under section 420 of Indian Penal Code.
The complaint was forwarded to the police for investigation
under section 156(3) of Code of Criminal Procedure. After
investigation, a final report was filed under section 173 of Code.
It was taken cognizance by the learned Magistrate as C.C. 1055
of 2006. Petitioner filed Crl.M.P.3769 of 2007 for an order of
discharge under section 239 of Cr.P.C. contending that
ingredients of an offence under section 420 of IPC is not made
out. Learned Magistrate as per the impugned order dated
17.1.2007 dismissed the petition. It is challenged in this
revision petition filed under section 397 read with section 401 of
Cr.P.C.
CRRP 849/08 2
2. Learned counsel appearing for petitioner pointed out
that neither in the original complaint which was forwarded to
the police, based on which police investigated the case nor in
any of the statements recorded by the police under section 161
of Cr.P.C., which are part of the final report filed under section
173 of Cr.P.C. there is an allegation that there was inducement
at the time when second respondent paid Rs.7,20,000/- for
getting dealership of imported cement or that petitioner had an
intention to cheat and therefore no offence under section 420 of
IPC is made out and Magistrate should have discharged the
petitioner under section 239 of Cr.P.C.
3. Learned counsel appearing for the second respondent
argued that petitioner issued a cheque drawn in his account
which was closed at that time, making him believe that he can
present the cheque and encash the same and it was on that
promise second respondent was made to part with Rs.7,20,000/-
and therefore an offence under section 420 of Indian Penal Code
is made out and what remains is only matter for evidence and
therefore without permitting the second respondent to adduce
evidence, petitioner cannot be discharged as sought for.
4. Learned counsel appearing for petitioner relied on
CRRP 849/08 3
the decision of this Court in Chary v. Martin (1982 KLT 427),
Muraleedharan v. Vijayakumar (2006 (4) KLT 342), and
decision of the High Court of Punjab and Haryana in Rama
Gupta v. Bakeman’s Home Products (1992 (1) KLT 765 and
the Apex Court in Veer Prakash Sharma v. Anil Kumar
Agarwal and Another (2007 (3) KHC 702). Learned counsel
also made available copies of the complaint and the statements
recorded by the police.
5. Section 239 of Code of Criminal Procedure provides
that if upon considering the police report and the documents
sent with it under section 173 and making such examination, if
any, as the Magistrate thinks necessary and after giving the
prosecution and accused an opportunity of being heard, the
Magistrate considers the charge against the accused to be
groundless, he shall discharge the accused after recording the
reason for so doing. Section 240 provides that if, upon such
consideration and examination, the Magistrate is of the opinion
that there is ground for presuming that accused has committed
an offence triable under Chapter XIX of the Code, which the
Magistrate is competent to try and which in his opinion could be
adequately punished by him, he shall frame a charge in writing
CRRP 849/08 4
against the accused. Therefore if the materials before the
learned Magistrate stand unrebutted, and with that materials
the ingredients of the offence is not attracted, it is a fit case for
discharge under section 239 of the Code. The question is
whether the materials available before the learned Magistrate
at that time disclose the ingredients of an offence under section
420 of Indian Penal Code. To constitute an offence under
section 420 of Indian Penal Code, it is mandatory that
ingredients of cheating as provided under section 415 is
established. To constitute an offence under section 415 there
should be an intentional inducement, whereunder the
complainant was made to part with money or deliver any
property. That inducement must be with an intention to cheat.
As rightly pointed out by the learned counsel appearing for the
petitioner, in the compliant which was forwarded to the police
under section 153 of Cr.P.C. there was no allegation that at the
time when petitioner was made to part with Rs.7,20,000/- there
was either any inducement or a case that there was an intention
to cheat. What was contended was that petitioner promised to
make him a distributor of imported cement and obtained
Rs.7,20,000/- and as promised he was not made a distributor
CRRP 849/08 5
and therefore petitioner agreed to pay that amount and
towards its repayment issued a cheque and when it was
presented for encashment, it was found that the cheque was
issued on an account which was closed. Case is that thus
second respondent was cheated. There is no statement by the
second respondent or any other witness that there was an
inducement with an intention to cheat at that time when the
money was parted with. Even if the statements recorded and
the averments in the complaint is accepted, case is only that by
issuing a cheque from an account which was closed, second
respondent cheated him. It is insufficient to constitute an
offence under section 420 of IPC. Therefore learned Magistrate
was not justified in not discharging the petitioner under section
239 of Cr.P.C. as the ingredients of the offence under section
320 is not made out on the materials, even if they stand
unrebutted. Revision is allowed. The impugned order is set
aside. Petitioner is discharged under section 239 of Code of
Criminal Procedure.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-