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

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,  inter alia,    that the

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