IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1955 of 2006()
1. C.SATHEESH KUMAR,
... Petitioner
Vs
1. STATE, RE. BY SHO, KASARAGOD,
... Respondent
2. K.J.MATHEW, S/O. JOSEPH,
For Petitioner :SRI.T.B.SHAJIMON
For Respondent :SRI.I.V.PRAMOD
The Hon'ble MR. Justice R.BASANT
Dated :26/02/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.1955 of 2006
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Dated this the 26th day of February 2007
O R D E R
The petitioner is the accused in a prosecution initiated
interalia under Section 420 I.P.C. He has come to this court
with a complaint about the heartless manner in which
cognizance has been taken of the offence punishable under
Sections 406, 417,411 and 420 I.P.C against him.
2. Cognizance has been taken on the basis of a private
complaint filed by the second respondent herein. At the time
when this Criminal Miscellaneous Case was filed, it appears that
cognizance has not been taken. But it is submitted that,
subsequently, cognizance has been taken and the case is now
pending as C.C.No.916/05 of the learned Chief Judicial
Magistrate, Kasaragod.
3. The short contention of the petitioner is that the
allegations in the complaint, even if accepted in toto, do not
reveal any offence committed by the petitioner. It would be a
traversity of justice to compel the petitioner to face the ordeal of
a criminal trial. In these circumstances, powers under Section
Crl.M.C.No.1955/06 2
482 Cr.P.C may be invoked and the proceedings against the
petitioner may be brought to premature termination, prays the
learned counsel for the petitioner.
4. First of all, it will be apposite to look at the nature of
the allegations. The petitioner and the second respondent are
co-workers under the same common employer – the Kerala State
Road Transport Corporation. They had offered themselves as
sureties for the other – mutual sureties, to enable them to avail
loan from a Co-operative Society. The petitioner availed a loan
for which the second respondent and another were the sureties.
The second respondent availed a loan for which the petitioner
and that other surety were the sureties. The second respondent
promptly and faithfully discharged his liability. But the
petitioner did not discharge the liability. Whenever the second
respondent made enquiries, he was assured that the needful
shall be done and the liabilities shall be discharged. But the
liabilities stand undischarged and the society is now initiating
steps against the second respondent. The second respondent
had filed a private complaint. It was referred to the police for
investigation under Section 156(3) Cr.P.C. The police had
Crl.M.C.No.1955/06 3
referred the complaint as one of civil nature. The petitioner has,
thereafter, filed a protest complaint in which cognizance was
taken and C.C.916/05 was registered.
5. The crux or the gravamen of the offence of cheating is
the making of a false representation which the maker knows to
be false and which he makes with deceitful intent to persuade
the victim to act on the basis of such false representation. In the
instant case, the alleged false representation is the statement
allegedly made by the petitioner that he shall discharge the
liabilities. On the basis of that representation, the second
respondent allegedly agreed to offer himself as a surety for the
petitioner.
6. It is, by now, trite that the mere breach of every
promise does not give rise to a valid cause of action for
prosecution for the offence of cheating. At the time of making
the representation, the maker must have made the
representation knowing the same to be false and with deceitful
intent.
7. Even if the entire version of the complainant/second
respondent were accepted, the rival contestants had offered
themselves as a surety for the other. Though there has been
Crl.M.C.No.1955/06 4
breach of the agreement to discharge the liability incurred by
the petitioner, there is absolutely nothing to even remotely
indicate that there was any deceitful intent at the time when the
representation was made. That the representation/promise was
not adhered to, by itself, is not a sufficient ground to justify
initiation of prosecution for the offence of cheating.
8. It follows from the above discussions that the
complaint filed is without any merit and this is an eminently fit
case where powers under Section 482 Cr.P.C can and ought to
be invoked.
9. In the result, this Criminal Miscellaneous Case is
allowed. C.C.No.916/05 pending before the learned Chief
Judicial Magistrate, Kasaragod initiated on the basis of Annexure
A1 complaint filed by the second respondent is hereby quashed.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.1955/06 6
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006