Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 AGAINST THE ORDER/JUDGMENT IN CRA 131/2003 OF ADDITIONAL SESSIONS COURT, NORTH PARAVUR CC 244/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA REVISION PETITIONER/S: MURALEEDARA PAI S/O. THRIVIKRAMAN PAI,, KALAPPARAMBATHU VEEDU, ALANGAD KAVU,, ALANGAD KARA, ALANGAD VILLAGE. BY ADV SRI.PRADEESH CHACKO RESPONDENT/S: 1 SUB INSPECTOR ALUVA POLICE STATION, ALUVA, ERNAKULAM DISTRICT. 2 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. OTHER PRESENT: PP SRI.NOUSHAD K.A THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BECHU KURIAN THOMAS, J.
======================== Crl.Rev.Pet No.724 of 2005 ------------------------------------------------ Dated this the 9th day of August, 2023
ORDER
Petitioner was the accused in C.C.No.244/1999 on the files of the Judicial First Class Magistrate Court-I, Aluva alleging offence punishable under Section 420 of the Indian Penal Code, 1860.
2. According to the prosecution, the accused had purchased
a bus bearing Reg.No.KLB 6030 for a total consideration of Rs.1,25,000/- on the basis of Ext.P2 agreement. After paying an amount of Rs.50,000/-, on 19.05.1998 the possession of the bus was handed over. However, in violation of the agreement, the accused failed to pay the balance consideration of Rs.75,000/- and hence he is alleged to have cheated the defacto complainant.
3. In order to prove the prosecution case, PW1 to PW5 were
examined and Exts.P1 to P5 were marked. The Trial Court after analysing the prosecution evidence came to the conclusion that the accused had failed to pay the balance consideration to PW1 and thus cheated the defacto complainant and committed the offence under Section 420 of the IPC. Petitioner was sentenced to undergo simple imprisonment for one year and directed to pay Rs.75,000/- as compensation to PW1 under Section 357 Cr.P.C.
4. On appeal, to the Additional Sessions Court, North
Paravur in Crl.Appeal No.131/2003, the learned Sessions Judge also found that the accused had failed to pay the balance consideration and confirmed the conviction and sentence imposed upon the petitioner.
5. Sri.Pradeesh Chacko, learned Counsel for the petitioner
contended that the prosecution allegations, even if proved, would only make out a civil dispute and not a criminal offence, punishable under Section 420 Cr.P.C. It was further submitted that intention at the time of entering into the agreement is not at all proved by any of the prosecution witnesses and therefore, the accused ought to have
been acquitted. The learned Counsel also argued that the appreciation of evidence by the Trial Court as well as the Appellate Court was irregular and improper warranting interference by this Court.
6. Sri.K.A.Noushad, learned Public Prosecutor, on the other
hand contended that the Trial Court as well as the Appellate Court had concurrently found that the accused had cheated the defacto complainant by refusing to pay the balance consideration. It was also pointed out that the dishonest intention was evident from the conduct of the accused in destroying the bus and therefore, no interference ought to be made on the concurrent findings of the courts.
7. The Trial Court came to the conclusion that the accused
had not paid the balance consideration, which finding was affirmed by the Appellate Court as well. Mere refusal or failure to pay balance consideration in a transaction of sale by itself would not fall within the purview of criminal liability under Section 420 Cr.P.C. The definition of cheating under Section 415 of the IPC requires dishonest inducement from the very inception itself, to mulct the criminal liability of cheating against a person. In numerous decisions, courts have held that in the absence of evidence to show the dishonest intention from the very beginning, courts cannot arrive at a
conclusion that the accused had cheated the defacto complainant.
8. The circumstances relied upon by the Trial Court as well
as the Appellate Court and canvassed by the learned Public Prosecutor before this Court that, the bus was destroyed by the accused after purchasing from the defacto complainant, cannot be a reason to assume that there was any dishonest intention from the inception itself to mulct him with the criminal liability under Section 420 IPC. Once a person comes into ownership of a movable property, it is his discretion to use or destroy the said property. Transfer of ownership conveys right title and interest in that property to the purchaser. Any condition repugnant to the interest created by the sale, would be an invalid condition, even in the case of an
immovable property. Therefore, once the sale transaction is admitted by the defacto complainant, he could not have insisted that the vehicle should not be destroyed by the purchaser. Further,
destruction of the bus after purchase also cannot indicate any dishonest intention on the part of the purchaser to cheat the defacto complainant from the beginning. Even otherwise if at all any balance consideration is due to the defacto complainant, the remedy available to him, is to recover the said amount through due course of law, by resorting to civil remedies.
9. In view of the above circumstances, I am convinced that
the appreciation of evidence by the Trial Court as well as the Appellate Court is perverse, erroneous and improper. The conviction of the revision petitioner for the offence under Section 420 IPC is liable to be interfered with.
Therefore, I set aside the conviction and sentence imposed upon the accused in C.C.No.244/1999 on the files of the Judicial First Class Magistrate Court-I, Aluva as confirmed in Crl.Appeal No.131/2003 on the files of the Additional Sessions Court, North Paravur and allow this criminal revision petition by acquitting the accused.
sd/ BECHU KURIAN THOMAS JUDGE jm/