Citation Codes

Equivalent Citations

citation codes

Case Number

Crl.MC. No. 2345 of 2015

Attorney(S)

By Adv. Sri. Kaleeswaram Raj
R1 By Adv. Sri. P.U. Shailajan
Sri. C.S. Hrithwik-Sr. PP

Judges

R. Narayana Pisharadi, J.

Acts

Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred
SECTION 138 NEGOTIABLE INSTRUMENTS ACT
Section 420 read with 34 I.P.C.6.
Section 420 IPC. Section 415 IPC
Section 420 read with 34 I.P.C.
Section 420 I.P.C.9.
Section 420 I.P.C.

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Smart Summary

Summary of Opinion: Petition under Section 482 CrPC to Quash Proceedings (R. Narayana Pisharadi, J.)

Factual and Procedural Background

The petitioners filed a petition under Section 482 of the Code of Criminal Procedure, 1973 to quash criminal proceedings initiated on the basis of an Annexure-1 complaint. The complainant (the first respondent) lodged the complaint alleging that the petitioners — family friends of the complainant and named as the first and second accused — requested and obtained a loan of Rs. 1,85,000 on 10.04.2007 after assuring repayment on 16.05.2007 and issuing a post-dated cheque dated 16.05.2007 drawn on Canara Bank. Sri Sushit is alleged to have witnessed the transaction. The cheque was presented and dishonoured for insufficient funds. Notices were exchanged; the accused allegedly denied issuing the cheque and later sought two years' time (with interest) to repay, which the complainant agreed to. After the two-year period elapsed without repayment, the complainant issued further notices and ultimately filed the complaint. The learned Magistrate took cognizance of an offence punishable under Section 420 read with Section 34 of the Indian Penal Code. The petitioners sought quashing of the proceedings on grounds including undue and unexplained delay and that the complaint did not disclose ingredients of Section 420 IPC. An enquiry under Section 202 CrPC recorded statements from the complainant and the witness Sushit.

Legal Issues Presented

Whether the complaint and subsequent proceedings may be quashed on the ground of undue and unexplained delay, even though the complaint is not shown to be barred by limitation under Section 468 CrPC.
Whether the averments in the complaint, on their face, disclose the ingredients of an offence punishable under Section 420 IPC (cheating) so as to justify criminal proceedings.

Arguments of the Parties

Petitioners' Arguments

There was undue and unexplained delay in filing the complaint; the alleged transaction occurred on 10.04.2007 and the complaint was filed on 29.03.2011 (and the agreed two-year repayment period expired in 2009), but the delay is not explained in the complaint.
The averments in the complaint do not constitute the ingredients of an offence punishable under Section 420 IPC (i.e., the petitioners contend the complaint discloses at most a civil breach and not criminal cheating).

Complainant's Allegations (as recorded in the opinion)

The complainant alleges the petitioners dishonestly induced him to give Rs. 1,85,000 by assuring repayment on 16.05.2007 and by issuing a post-dated cheque; the cheque was subsequently dishonoured for insufficient funds.
The complainant alleges that after dishonour he issued notice and the accused denied issuing the cheque, later sought two years' time (with interest) to repay, then failed to pay within that period, and thereafter made false averments in reply to subsequent notices.
During enquiry under Section 202 CrPC, the complainant and the witness Sushit corroborated the material aspects of the transaction and the agreement for repayment within two years.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : AIR 2007 SC 2762	Principle that "a crime never dies" and that mere delay in approaching a court is not by itself a ground for dismissal when no period of limitation is prescribed; delay may be relevant in final verdict but cannot alone oust prosecution.	Relied upon to hold that when a complaint is not barred by limitation, it cannot be thrown out at the threshold merely because of delay; delay is a circumstance for final determination.
Assistant Collector of Customs v. L.R. Melwani, AIR 1970 SC 962	Prosecution generally should not be quashed solely on the ground of delay in instituting the complaint.	Applied as supporting authority for the proposition that delay alone (absent statutory bar) does not justify quashing the prosecution at the threshold.
Suresh v. Mahadevappa Shivappa, (2005) 3 SCC 670 : AIR 2005 SC 1047	Shows a case where inordinate delay (more than ten years) and the civil nature of allegations led to quashing; demonstrates that delay may be a valid ground in certain circumstances.	Distinguished: the court held that Suresh is not applicable here because that case involved very long delay and allegations that were of civil nature where ingredients of Section 420 were not made out.
Lakshman v. State of Karnataka (Judgment dated 17.10.2019 in Criminal Appeal Nos. 1573-1575 of 2019)	Holds that mens rea is to be determined with regard to facts and complaint contents; High Courts in Section 482 petitions should not record findings on disputed facts; filing suits for recovery or complaints under Section 138 NI Act is not by itself a ground to quash; Section 482 power must be exercised sparingly.	Applied to emphasize that (a) questions of mens rea and factual disputes cannot be resolved at the quashing stage, (b) mere civil proceedings or NI Act proceedings alone do not mandate quashing, and (c) Section 482 should be used sparingly.
Sangeetaben v. State of Gujarat, (2012) 7 SCC 621 : AIR 2012 SC 2844	Holds that a person tried under Section 138 NI Act can still be prosecuted under Section 420 IPC on similar facts because the ingredients of the two offences differ.	Applied to support the proposition that even where Section 138 proceedings may be available (and even if pursued), separate prosecution for Section 420 can still lie because the offences are distinct in ingredients.

Court's Reasoning and Analysis

The court proceeded through a sequence of legal inquiries and factual observations strictly based on the complaint and authorities cited:

Limitation and Delay: The court noted the timeline (transaction on 10.04.2007, cheque dated 16.05.2007, complaint filed 29.03.2011) and that the petitioners did not specifically plead the complaint was barred by limitation under Section 468 CrPC. The court accepted that there was undue delay in filing (the two-year repayment period had expired in 2009, and the complaint was filed in 2011) and that the delay was unexplained in the complaint.
Legal Effect of Delay: Relying on precedents (Japani Sahoo and Collector of Customs v. Melwani), the court explained the governing principle that mere delay, when no statutory limitation bars the complaint, is not by itself a ground for quashing at the threshold. Inordinate and unexplained delay is a factor to be considered at trial (or in final determination) but not ordinarily a basis to dismiss the complaint outright when limitation does not apply.
Applicability of Suresh: The court considered the petitioners' reliance on Suresh v. Mahadevappa Shivappa but distinguished it on its facts (very long delay and the civil nature of allegations) and concluded that Suresh did not apply to the present facts.
Ingredients of Section 420 and Cheating (Section 415): The court set out the statutory text and the ingredients of cheating and Section 420 as a matter of law — i.e., that cheating requires deceiving a person and dishonestly inducing them to deliver property, etc., and Section 420 punishes cheating that induces delivery of property or similar acts.
Application to the Complaint: The court observed that the complaint specifically alleges dishonest inducement — that the petitioners induced the complainant to part with money by assuring repayment and issuing a cheque that was dishonoured, and that subsequent conduct (denials and failure to repay) is relevant to intent. The court emphasized that at the quashing stage the complaint must be read as a whole without resolving factual disputes or evaluating the merits.
Scope of Section 482: Citing Lakshman, the court reiterated that High Courts should exercise the power under Section 482 sparingly and should avoid recording findings on disputed facts in quashing petitions. The court also noted that the mere filing of civil suits or proceedings under Section 138 NI Act (which the complainant had not instituted here) does not automatically mandate quashing of criminal proceedings where allegations of fraud/cheating are made.
Concurrent or Subsequent Proceedings under Section 138 NI Act: The court noted the complainant did not pursue Section 138 NI Act proceedings despite a notice; the first petitioner replied she had no account on which the cheque was drawn. Even if Section 138 proceedings were prosecuted, Sangeetaben was relied upon to explain that prosecution for Section 420 can still be initiated because the offences require different ingredients.
Conclusion of Analysis: After weighing delay, statutory ingredients, and relevant precedents, the court found no sufficient ground to quash the complaint or to set aside the Magistrate's order taking cognizance for an offence under Section 420 read with Section 34 IPC. The court declined to resolve factual disputes at this stage.

Holding and Implications

HOLDING: The petition to quash the proceedings is dismissed; there is no sufficient ground to quash the complaint or the Magistrate's order taking cognizance of an offence punishable under Section 420 read with Section 34 IPC against the petitioners.

Implications and immediate consequences:

The criminal proceedings founded on the Annexure-1 complaint will continue; the Magistrate's cognizance order stands.
The court did not set aside or create any new legal principle beyond applying existing authorities: delay, by itself (unless barred by limitation), is not ordinarily a ground for quashing; the factual questions (including mens rea) are to be resolved at trial and not in a Section 482 quashing petition. The court expressly declined to decide disputed facts at this stage.

No broader precedent was announced by this decision; the court applied established principles and dismissed the petition without resolving factual disputes.

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Sindhu S. Panicker And Another Petitioners/Accused v. A. Balakrishnan And Another /Complainant.

R. Narayana Pisharadi, J.:— This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) to quash the proceedings initiated against the petitioners on the basis of Annexure-1 complaint.

2. The first respondent (hereinafter referred to as ‘the complainant’) filed Annexure-1 complaint against the petitioners. On the basis of the allegations in the complaint, learned Magistrate has taken cognizance of the offence punishable under Section 420 read with 34 I.P.C. The petitioners are the first and the second accused in the case.

3. The material averments in Annexure-1 complaint are as follows:

The complainant and the accused were family friends. On 02.04.2007, both the accused approached the complainant and requested him to lend them Rs. 1,85,000/-. They assured the complainant that they would repay the amount on 16.05.2007 and that they would issue a post-dated cheque to him so that he could encash it on that date. The complainant believed the accused and told them that he would give them the amount on 10.04.2007. The accused came to the house of the complainant on 10.04.2007 and the first accused received the amount of Rs. 1,85,000/- from the complainant and gave him a cheque dated 16.05.2007, drawn on Canara Bank, for that amount. The entire transaction was witnessed by Sri. Sushit, a common friend of the complainant and the accused.

4. The complainant presented the cheque in the bank. It was dishonoured on the ground that funds were insufficient. The complainant issued a notice to the first accused on 22.05.2007 intimating her about the dishonour of the cheque and demanding payment of the cheque amount. The first accused sent a reply stating that she had no occasion to give any cheque to the complainant. On 20.06.2007, both accused approached the complainant along with Sri. Sushit and they requested the complainant to grant them two years time to repay the amount with interest at the rate of 12% per annum. The matter was talked over in the presence of mediators and Sushit and finally the complainant agreed for the same.

5. Even after the period of two years, the accused did not pay the amount to the complainant. On 29.07.2010, the complainant issued notice to both accused demanding the amount. The first accused sent a reply containing false averments. The accused had dishonestly induced the complainant to believe that the cheque would be honoured on presentation and the complainant had given them the amount on believing them. The cheque was issued by the accused stating that it belonged to the first accused. The act of the accused is punishable under Section 420 read with 34 I.P.C.

6. During the enquiry under Section 202 of the Code, the complainant and Sushit were examined. In the sworn statement, the complainant has briefly stated the details of the transaction with the accused. The witness Sushit has stated that the complainant had given the amount to the accused in his presence. He has also stated about the agreement reached between the parties that the accused would repay the amount within a period of two years.

7. Heard learned counsel for the petitioners and the first respondent and the learned Public Prosecutor.

8. Learned counsel for the petitioners has urged the following two grounds to quash the proceedings initiated against the petitioners on the basis of Annexure-1 complaint. They are: (1) There is undue and unexplained delay in filing the complaint (2) The averments in the complaint do not constitute the ingredients of an offence punishable under Section 420 I.P.C.

9. The transaction alleged by the complainant was on 10.04.2007. The cheque allegedly given by the accused to the complainant is dated 16.05.2007. The complaint against the petitioners was filed only on 29.03.2011.

10. The offence under Section 420 I.P.C. is punishable with imprisonment for a term which may extend to seven years. The petitioners have got no plea that the complaint is barred by limitation under Section 468 of the Code.

11. The complainant has got a case that the accused had agreed to pay the amount within two years. Such period had expired in the year 2009. The complaint was filed only on 29.03.2011. There was undue delay in filing the complaint. The delay is not explained in the complaint.

12. Can the complaint be quashed on the ground of undue delay, even though it is not barred by limitation as prescribed under the Code?

13. The general rule of criminal justice is that “a crime never dies”. Mere delay in approaching a court of law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict (See Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : AIR 2007 SC 2762). When no period of limitation is prescribed for filing the complaint, it cannot be thrown out on the sole ground of delay. The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final decision. But, by itself, it affords no ground for dismissing the complaint. Prosecution should not be quashed on the ground that there was delay in instituting the complaint (See Assistant Collector of Customs v. L.R. Melwani, AIR 1970 SC 962).

14. Inordinate and unexplained delay in filing a complaint regarding commission of an offence would certainly a factor to be taken into account by the court in taking the final decision in the case. But, when the complaint is not barred by limitation, it cannot be thrown out at the threshold, merely on the ground of undue delay.

15. Learned counsel for the petitioners has relied upon the decision in Suresh v. Mahadevappa Shivappa, (2005) 3 SCC 670 : AIR 2005 SC 1047 in support of the plea that the complaint is liable to be quashed on the ground of inordinate delay. It was a case in which there was a delay of more than ten years in filing the complaint. Moreover, the complaint was quashed in that case not merely on the ground of delay in filing it. In that case, commission of the offence under Section 420 IPC was alleged based on breach of a contract for sale of property. The Apex Court found that the allegations in the complaint were of civil nature and ingredients of an offence under Section 420 were not made out. This decision has no application to the facts of the present case.

16. Section 420 IPC provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

17. The ingredients to constitute an offence under Section 420 are: (i) A person must commit the offence of cheating under Section 415 IPC; and (ii) The person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.

18. Cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. Section 415 IPC states that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

19. The ingredients to constitute an offence of cheating are as follows: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or (b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

20. There is a specific averment in the complaint that the petitioners/accused had dishonestly induced the complainant that the amount would be repaid on 16.05.2007 and that the cheque issued by the first accused would be honoured on presentation and that the complainant paid them the amount on believing their words. It is trite that the complaint must be examined as a whole, without evaluating the merits of the allegations. True, there is distinction between mere breach of contract and cheating. Here, fraudulent inducement of the complainant by the petitioners to part with the money is specifically alleged in the complaint. Regarding the dishonest intention of the accused, their subsequent conduct is also relevant.

21. In a very recent decision, in Lakshman v. State of Karnataka (Judgment dated 17.10.2019 in Criminal Appeal Nos. 1573-1575 of 2019), the Apex Court has held that in a given case, whether there is any mens rea on the part of the accused or not is a matter which is required to be considered having regard to the facts and circumstances of the case and contents of the complaint etc. It has also been held that in a petition under Section 482 of the Code, it is fairly well settled that it is not permissible for the High Court to record any findings, wherever there are factual disputes. It has been further held that mere filing of the suits for recovery of the money and complaint filed under Section 138 of the N.I. Act by itself is no ground to quash the proceeding. Even if the case involves breach of contract, if there is an element of cheating and fraud, it is always open for a party to prosecute the other side for the offences alleged. It has also been held that the power under Section 482 of the Code is to be exercised sparingly when the case is not made out for the offences alleged on the reading of the complaint itself or in cases where such complaint is filed by way of abuse of the process.

22. It is true that the complainant did not institute any complaint under Section 138 of the Negotiable Instruments Act inspite of sending notice to the first accused/first petitioner. But, the first petitioner had sent reply notice stating that she had no account in the bank on which the cheque was allegedly drawn. Even if a person has been tried and dealt with for the offence punishable under Section 138 of the Negotiable Instruments Act, on similar facts, he can be subsequently tried for an offence punishable under Section 420 IPC. The reason is that the ingredients of the two offences are different (See Sangeetaben v. State of Gujarat, (2012) 7 SCC 621 : AIR 2012 SC 2844).

23. In the light of the discussion above, I find that there is no sufficient ground to quash the complaint or the order passed by the learned Magistrate taking cognizance of the offence punishable under Section 420 read with 34 IPC against the petitioners.

24. Consequently, the petition is dismissed.

Sindhu S. Panicker And Another Petitioners/Accused v. A. Balakrishnan And Another /Complainant.

Summary of Opinion: Petition under Section 482 CrPC to Quash Proceedings (R. Narayana Pisharadi, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Complainant's Allegations (as recorded in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sindhu S. Panicker And Another Petitioners/Accused v. A. Balakrishnan And Another /Complainant.

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