Saturday, 13 April 2019

Whether failure to pay Mobile postpaid amounts to offence of cheating U/S 420 of IPC?

 The prosecution case as against the petitioner as per Annexure 1 report is that, he, after having obtained a mobile postpaid connection in his name, failed to discharge his liability for user charges for a period of 5 months from 21.7.2006 to 21.11.2006. The allegation is that the petitioner incurred a gross monetary liability of ` 97,678.5/- for the period and after making a part payment of ` 10,580/-, he kept the balance in arrears. The default on the part of the petitioner, according to the prosecution, amounts to an offence of cheating punishable under Section 420 of IPC.

3. The petitioner's case is that the transaction in question is based on an agreement between the parties and therefore the alleged liability under the transaction is purely of civil nature. In as much as what is made out is only a civil liability out of the transaction in question, the petitioner seeks the consequential criminal proceedings in C.C. No. 1518/2008 pursuant to the Annexure 1 final report, to be quashed.

5. On marshaling the materials on record, I find that the transaction involved as between the parties is one arising out of a civil dispute. The purported liability of the petitioner seems to have arisen from breach of promise or agreement other than a breach followed by any dishonest intention to cheat the de facto complainant. Mere breach of trust or agreement will not by itself amount to a criminal offence under Section 420 IPC. In order to make out an offence under Section 420, the prosecution has to show that the dishonest intention to cheat existed at the time when the alleged promise in question was made. That legal proposition does not match the materials on record as well as the allegations made out through the Annexure 1 report. Consequently being satisfied that what is involved in the present case is one of civil dispute between parties, I hold that this seems to be a fit case where the criminal proceedings pending before the Additional Chief Judicial Magistrate Court, Ernakulam requires to be quashed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 1813 of 2014

Decided On: 08.03.2019

Abdul Hakkem P.V. Vs.  State of Kerala and Ors.

Hon'ble Judges/Coram:
T.V. Anil Kumar, J.




1. The petitioner the sole accused in C.C. No. 1518/2008 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam seeks to quash Annexure 1 final report submitted by Ernakulam Town South Police Station in Crime No. 106/2007 before that court.

2. The prosecution case as against the petitioner as per Annexure 1 report is that, he, after having obtained a mobile postpaid connection in his name, failed to discharge his liability for user charges for a period of 5 months from 21.7.2006 to 21.11.2006. The allegation is that the petitioner incurred a gross monetary liability of ` 97,678.5/- for the period and after making a part payment of ` 10,580/-, he kept the balance in arrears. The default on the part of the petitioner, according to the prosecution, amounts to an offence of cheating punishable under Section 420 of IPC.

3. The petitioner's case is that the transaction in question is based on an agreement between the parties and therefore the alleged liability under the transaction is purely of civil nature. In as much as what is made out is only a civil liability out of the transaction in question, the petitioner seeks the consequential criminal proceedings in C.C. No. 1518/2008 pursuant to the Annexure 1 final report, to be quashed.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. The 2nd respondent, the de facto complainant did not appear inspite of service of notice on it.

5. On marshaling the materials on record, I find that the transaction involved as between the parties is one arising out of a civil dispute. The purported liability of the petitioner seems to have arisen from breach of promise or agreement other than a breach followed by any dishonest intention to cheat the de facto complainant. Mere breach of trust or agreement will not by itself amount to a criminal offence under Section 420 IPC. In order to make out an offence under Section 420, the prosecution has to show that the dishonest intention to cheat existed at the time when the alleged promise in question was made. That legal proposition does not match the materials on record as well as the allegations made out through the Annexure 1 report. Consequently being satisfied that what is involved in the present case is one of civil dispute between parties, I hold that this seems to be a fit case where the criminal proceedings pending before the Additional Chief Judicial Magistrate Court, Ernakulam requires to be quashed.

In the result, Crl.M.C. No. 1813/2014 is allowed quashing the entire proceedings pending in C.C. No. 1518/2008 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam.




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