IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3767 of 2010()
1. C.VENUGOPALAN, S/O.KRISHNA MENON,
... Petitioner
2. PUTHUMANA KESAVAN, S/O.KUTTIKRISHNA
Vs
1. C.K.SAROJINI, D/O.JANAKI AMMA,
... Respondent
2. M.P.UDAYAVARMAN, S/O.KUNJUKUTTY KOLPAD,
3. VEERAMANI, VEERAMANI TEXTILES,
4. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.T.KRISHNAN UNNI (SR)
For Respondent :SRI.A.K.MADHAVAN UNNI
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/12/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
CRL.M.C.No. 3767 OF 2010
===========================
Dated this the 10th day of December,2010
ORDER
Petitioners are accused 2 and 3 in Crime
438/2010 of Pattambi Police Station registered
for the offence under section 420 read with
section 34 of Indian Penal Code under Annexure
A1 F.I.R. The F.I.R was registered based on
the complaint filed by the first respondent
before the Judicial First Class Magistrate
Court-I, Pattambi and sent for investigation
under section 156(3) of Code of Criminal
Procedure. Petition is filed under section 482
of Code of Criminal Procedure to quash the
proceedings against the petitioners who are
accused 2 and 3 contending that even if the
allegations against them in Annexure A1
complaint is accepted, no offence as against
them is attracted and therefore continuation of
Crl.M.C.3767/2010 2
the proceedings is only an abuse of process of
court.
2. Learned counsel appearing for the
petitioners, first respondent and learned Public
Prosecutor were heard.
3. First respondent instituted O.S.176/2008
and O.S.177/2008 before Munsiff’s Court, Pattambi.
Advocate Bhaskaran Nair was appearing for the first
respondent in both the suits. In both the suits
petitions attachment before judgment, of the
moveables of Veeramani Textiles owned by the
fourth accused, for realization of the amount of
Rs.1,60,000/- claimed in the suit were filed. An
order of attachment was passed on 16.12.2008. The
case in Annexure A1 complaint is that before the
attachment could be effected, on 18.12.2008 as
sent by the first accused, the counsel appearing
for the fourth accused for the defendants in the
suit, first petitioner the junior counsel and
second petitioner the document writer along with
the fourth accused went to the house of Advocate
Crl.M.C.3767/2010 3
Bhaskaran Nair representing that first accused sent
them praying that the order of attachment is to be
withdrawn promising that Rs.50,000/- will be paid
and the balance will be paid within three months.
It is alleged that Advocate Bhaskaran Nair
contacted the first accused who also assured that
payment will be made and thereafter accepting the
promise the counsel appearing for the first
respondent had withdrawn the applications for
attachment. Subsequently defendants did not pay
the amount. It is alleged that though first
respondent contacted the accused, he refused to pay
the amount and represented that he cannot pay the
amount and thereby all the accused committed the
offence.
4. Learned senior counsel appearing for the
petitioners and first respondent and learned Public
Prosecutor were heard.
5. To attract an offence under section 420 of
Indian Penal Code, there should be materials to
show that petitioners induced the first respondent
Crl.M.C.3767/2010 4
to part with money or to omit the act, with a
dishonest intention to cheat. Even if Annexure A1
complaint is accepted, there is no allegation that
there was a dishonest intention on the part of the
petitioners to cheat at the inception. The only
case is that though petitioners met the counsel
appearing for the first respondent before the civil
courts and sought to withdraw the attachment
promising to pay the balance amount due, after
paying Rs.50,000/-, and the amount was not paid.
It is the case that the order of attachment would
not have been withdrawn but for the promise and the
inducement made that it will be paid. It is the
case that on the failure to pay the amount as
promised, an offence under section 420 of Indian
Penal Code is committed.
6. Even if the case as stated in the complaint
is accepted, first petitioner who is respectively
the junior of the first accused advocate appearing
for the defendants and second petitioner a document
writer, met Advocate Bhaskaran Nair on the morning
Crl.M.C.3767/2010 5
of 18.12.2008 representing that they will pay
Rs.50,000/- and the balance will be paid within
thirty days. As far as petitioners are concerned,
they have no liability to discharge any debt. At
best, it could be said that as instructed by the
counsel appearing for the fourth accused in the
suits, first petitioner junior along with the
second petitioner document writer and fourth
accused the defendant met the counsel appearing for
the first respondent,and represented that the
fourth accused would pay the entire amount and
Rs.50,000/- will be paid on that day. The question
is whether by conveying the willingness or
undertaking of the fourth accused, first petitioner
junior counsel to the Advocate appearing for the
fourth accused and the document writer would be
guilty of an offence under section 420 of Indian
Penal Code. On the admitted facts, it cannot be
said that petitioners made any inducement to the
first respondent and persuaded her to withdraw the
petition with a dishonest intention. At best it
Crl.M.C.3767/2010 6
could be said that petitioners joined with the
fourth accused, when they met the counsel appearing
for the first respondent and promised to pay the
amount within a period. If the fourth accused
did not pay the amount as promised, petitioners
cannot be prosecuted for the offence under section
420 of Indian Penal Code. In such circumstances,
continuation of the proceedings against the
petitioners is only an abuse of process of court.
To secure the justice it is to be quashed.
Petition is allowed. C.C. 438/2010 of Pattambi
Police Station against the petitioners accused 2
and 3 registered under Annexure I F.I.R is quashed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006