High Court Kerala High Court

Narayanakkuruppu vs Rohith R.Kuruppu on 27 May, 2009

Kerala High Court
Narayanakkuruppu vs Rohith R.Kuruppu on 27 May, 2009
       

  

  

 
 
  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.
                           --------------------------------------
                              Crl.R.P.No.1124 of 2009
                           --------------------------------------
                       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

Crl.R.P.No.1124/2009

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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

Crl.R.P.No.1124/2009

4

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