Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1593 OF 2018
[Arising out of SLP (Crl.) No. 1960 of 2018]
Vinod Natesan .. Appellant
Versus
State of Kerala & Ors. .. Respondents
J U D G M E N T
M. R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 02.12.2016 passed by the High Court of Kerala at
Ernakulam in Criminal Miscellaneous Case No.355 of 2016 by which
the High Court has quashed the proceedings of CC 139 of 2015 at
JFCMIII at Calicut, the original Complainant has preferred the
Signature Not Verified
Digitally signed by
SUSHIL KUMAR
RAKHEJA
Date: 2018.12.12
11:55:08 IST
Reason:
present Appeal.
3. That the appellant herein filed a complaint against the
respondent accused for the offences under Section 420, 406 read with
Section 34 of the IPC alleging, inter alia, that after entering into the
agreement by the Accused with the Complainant with regard to
availing of intellectual services for marketing the products of the
complainant, the accused did not pay the amount due and payable
under the agreement and paid a sum of Rs.1,50,000/ only (Rupees
One Lakh Fifty Thousand Only) and without paying the remaining
amount backed out from the agreement and thereby the accused has
committed the offence as alleged.
3.1 On the chargesheet filed by the Investigating Officer, the
complaint filed by the Appellantoriginal Complainant was registered
as CC No.139 of 2015 on the file of the learned Judicial First Class
Magistrate CourtIII at Kozhikode for the offences under Sections 406
and 420 read with Section 34 of the IPC. Therefore, the original
accused approached the High Court under Section 482 of the Cr.PC to
quash the criminal proceedings contending, that the
inter alia,
dispute is purely a civil dispute and even the averments and
allegations made in the complaint do not disclose any cognizable
offence for the offences under Sections 406 and 420 read with Section
34 of the IPC. It was also submitted that even for breach of contract
and for damages etc. the complainant has already instituted a Suit.
Having heard the learned counsel appearing on behalf of the original
Accused and the original Complainant as a party in person, by
impugned judgment and order the High Court has quashed the
criminal proceedings by observing that the complaintcriminal
proceeding is nothing but an abuse of the process of law as the
averments and allegations made in the complaint the ingredients of
Sections 406 and 420 of IPC are not satisfied. The High Court also
observed that at the most the dispute can be said to be a civil nature
which is tried to be converted into a criminal dispute.
3.2 Feeling aggrieved and dissatisfied with the judgment and order
passed by the High Court quashing the criminal proceedings initiated
by the original complainant, the original Complainant has preferred
the present Appeal.
4. We have heard the appellant herein the original Complainant
party in person and Shri Sriram P., learned Advocate appearing on
behalf of the original Accused and learned Advocate appearing on
behalf of the State of the Kerala.
4.1 The appellant, party in person has vehemently submitted that, in
the facts and circumstances of the case, the High Court has
committed grave error in quashing the criminal proceedings. It is
vehemently submitted by the Appellantparty in person that as the
accused did not act as per the agreement entered into between the
parties and did not make the payment due and payable under the
agreement and a sum of Rs.3,00,000/ (Rupees Three Lakhs Only)
was due and payable and, therefore, the accused committed the
offence of cheating. It is submitted that after availing his intellectual
services the accused did not make the full payment including one
month’s notice before terminating the contract/agreement.
4.2 An attempt was made by the Appellantparty in person
submitting that as such initially the learned Judge dismissed the
application, which is evident from P14. It is submitted that, however,
when the subsequently when the order was declared, the learned
Judge allowed the petition and quashed the criminal proceeding. It is
submitted that, therefore, the impugned judgment and order passed
by the learned Single Judge deserves to be quashed and set aside.
5. The present appeal is vehemently opposed by the learned counsel
appearing on behalf original Accused who has supported the
impugned judgment and order passed by the learned Single Judge. It
is submitted that as rightly observed by the High Court the dispute
between the parties can be said to be a civil dispute and no criminality
is established and the ingredients of Sections 406 and 420 of IPC are
not satisfied at all and, therefore, the High Court has rightly quashed
the criminal proceedings.
6. Having heard the appellant as party in person and the learned
Advocates appearing on behalf of the original accused as well as the
State of Kerala and considering the judgment and order passed by the
High Court, we are of the opinion that the learned High Court has not
committed any error in quashing the criminal proceedings initiated by
the complainant. Even considering the allegations and averments
made in the FIR and the case on behalf of the Appellant, it cannot be
said that the ingredients of Sections 406 and 420 are at all satisfied.
The dispute between the parties at the most can be said to be the civil
dispute and it is tried to be converted into the criminal dispute.
Therefore, we are also of the opinion that continuing the criminal
proceedings against the Accused will be an abuse of process of law
and, therefore, the High Court has rightly quashed the criminal
proceedings. Merely because the original accused might not have paid
the amount due and payable under the agreement or might not have
paid the amount in lieu of one month Notice before terminating the
agreement by itself cannot be said to be a cheating and/or having
committed offence under Sections 406 and 420 of the IPC as alleged.
We are in complete agreement with the view taken by the High Court.
7. In so far as the submissions made on behalf of the Appellant
party in person that initially the learned Judge dismissed the
application and, thereafter when the judgment was dictated and
pronounced, the learned Judge has allowed the application and,
therefore, the impugned judgment and order passed by High Court is
required to be quashed and set aside is concerned, the aforesaid has
no substance. What is produced as P45 is the docket of the file,
which does not bear the signature of the learned Judge. Therefore, it
cannot be said that initially the learned Judge dismissed the petition
and, thereafter, when the judgment was pronounced the order was
changed and the application was allowed. Even otherwise, as
observed hereinabove, we are more than satisfied that there was no
criminality on part of the accused and a civil dispute is tried to be
converted into a criminal dispute. Thus to continue the criminal
proceedings against the accused would be an abuse of the process of
law. Therefore, the High Court has rightly exercised the powers under
Sections 482 of the Cr.PC and has rightly quashed the criminal
proceedings. In view of the aforesaid and for the reasons stated above,
the present appeal fails and deserves to be dismissed and is
accordingly dismissed.
………………………………………………J.
(MOHAN M. SHANTANAGOUDAR)
………………………………………………J.
(M. R. SHAH)
New Delhi,
December 11, 2018