IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1124 of 2009()
1. NARAYANAKKURUPPU, S/O.N.NARAYANAKKURUPPU
... Petitioner
Vs
1. ROHITH R.KURUPPU,S/O.RAVEENDRA KURUPPU,
... Respondent
2. N.RAVEENDRAKURUPPU,S/O.NARAYANAKKURUPPU,
3. STATE OF KERALA,REPRESENTED BY PUBLIC
For Petitioner :SRI.E.NARAYANAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/05/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1124 of 2009
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Dated this the 27th day of May, 2009.
ORDER
Public Prosecutor takes notice for respondent No.3.
2. Heard counsel for petitioner and the Public Prosecutor.
3. Dismissal of a private complaint under Section 203 of the Code of
Criminal Procedure (for short, “the Code”) is under challenge in this revision.
Petitioner and respondent No.2 are direct brothers. Respondent No.1 is the son
of respondent No.2 and during the relevant time was engaged in his college
study. Case of the petitioner is that on the request of respondent No.2, he
arranged residence for respondent No.1 in his residential building on the
agreement that respondent Nos.1 and 2 would pay him rent at the rate of
Rs.2,000/- per month. Respondent No.1 accordingly stayed in that room for the
period from 2.9.2004 till October, 2008 and completed his study. While
respondent No.1 vacated the room he offered that respondent No.2 will pay the
rent as per the understanding that at the time of vacating the entire rent will be
paid. But, respondent Nos.1 and 2 did not pay the rent. It is the further case of
the petitioner that it was with the intention to cheat the petitioner that respondent
Nos.1 and 2 offered to pay the amount when respondent No.1 vacated the room.
Sworn statement of the petitioner and two witnesses were recorded by the
learned magistrate. Learned magistrate has considered the sworn statement
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and held that no material is produced to show dishonest and fraudulent intention
on the part of respondent Nos.1 and 2 at the time of taking the room on rent to
cheat the petitioner and consequently dismissed the complaint under Section
203 of the Code. Learned counsel for petitioner contends that the finding of the
learned magistrate is not correct. According to the learned counsel the act may
give rise to a civil or criminal action and it is open to the parties to choose any
one of it. Learned counsel also submitted that what the learned magistrate had
to consider at this stage was not whether sufficient material to enter a
conviction is produced but only whether there is sufficient ground to proceed, ie.,
whether a prima facie case is made out. Learned counsel placed reliance on
the decisions in Imbicha Bava Haji v. Imbichi Bava (1965 KLT 771), Balraj
Khanna v. Moti Ram (AIR 1971 SC 1389), Nirmaljit v. State W.B. (AIR 1972 SC
2638) and N.Devindrappa v. State of Karnataka ([2007] 5SCC 228.
3. In Imbicha Bava Haji’s case this Court referred to the
circumstances to be considered by the magistrate. It is stated that for
determining the question whether any process is to be issued or not, what the
magistrate has to be satisfied with is whether there is “sufficient ground for
process” and not whether there is sufficient ground for conviction. In Balraj
Khanna’s case, Apex court has stated that where the magistrate is satisfied on
the basis of the material placed before him by a complainant that the prima facie
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case is made out, he must commit the accused for trial. The same view was
taken in Nirmaljit’s case. In Devindrappa’s case in paragraph 6, the Apex Court
has observed that,
“On the other hand, the case of the
prosecution was that the appellant-accused was
not the owner of the land and he made the
complainant to believe that he was the owner of
the land and for selling a plot of the land he
received part of the sale consideration as
advance from the complainant though he
subsequently did not allot him any land despite
repeated requests.”
(emphasis supplied)
4. What Section 203 of the Code requires is that if after considering
the statements on oath of the complainant and of the witnesses and the result of
the enquiry or investigation under Section 202 the magistrate is of opinion that
there is no sufficient ground for proceeding, he shall dismiss the complaint. In
this case, it is not disputed that respondent No.2 is the direct brother of the
petitioner and respondent No.2 is the son of respondent No.2. Case is that there
was an agreement between the petitioner and respondent No.2 as per which
respondent No.1 was given a room in the residential building of the petitioner
on rent and as per the agreement the rent was Rs.2,000/- per month payable as
and when respondent No.1 vacated the room. It is the further allegation that
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respondent No.1 did not pay the amount though respondent No.2 vacated the
room. Going through the order under challenge and hearing the learned
counsel I am not satisfied that any material sufficient for the
prima facie satisfaction as stated in Section 203 of the Code was produced.
The decision of the Apex Court in Devindrappa’s case rested on the factual
basis that the complainant was made to believe by the accused that he was the
owner of the land agreed to be sold but later it was revealed that the accused
was not the owner. There was apparently a dishonest representation by the
accused that he was the owner of the land agreed to be sold and on that
representation he caused the complainant to pay part of the sale consideration
in advance. No such factual situation arises in this case and what is involved is
only a civil liability. I am not persuaded to think that any civil liability by an
ingenious drafting of the complaint or a sworn statement accordingly could be
converted into a criminal liability inviting the process of criminal law. It is not
sufficient that materials are produced before the magistrate. What is required
is that the magistrate is of the opinion that there is sufficient ground to proceed.
Assuming that respondent Nos.1 and 2 did not pay the rent at the time
respondent No.1 vacated the room or even that they deliberately did not pay the
rent, that cannot amount to cheating. Dishonest or fraudulent inducement at the
time of the agreement should have been shown, prima facie. Any tenant not
paying the rent as agreed cannot be prosecuted for the offence of cheating by a
clever drafting of the complaint. Learned magistrate has considered all relevant
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aspects and was of the opinion that no sufficient grounds existed to proceed
further. I do not find anything illegal, irregular or improper in the finding that
complaint is liable to be dismissed under Section 203 of the Code.
Resultantly, revision petition fails. It is dismissed.
THOMAS P.JOSEPH,
Judge.
cks