SHAJI AUGUSTINE Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the sole accused in C.C.No.46 of 2016 of the Judicial First Class Magistrate Court, Adimaly for offences punishable under sections 406 and 420 of the Indian Penal Code.

(2.) The above crime was registered on the basis of a private complaint, a copy of which is produced as Annexure-A1 dated 17.08.2015, filed by the second respondent herein, defacto complainant. She claimed that the accused and the husband of the defacto complainant were running a joint business. In 2013, the accused requested the defacto complainant and her husband to share the amount for taking on lease, a resort by name 'Munnar Black Forest' on profit sharing basis. It was stated that, if they are able to invest Rs.25, 00, 000/-, they would get huge profits. Believing the representation, amounts were given by the defacto complainant on few occasions till February 2014, totalling to Rs.12, 53, 000/-. Thereafter, accused represented that the business was not profitable, and that he was withdrawing from the project. He undertook to return the money by November 2014. An agreement was executed and handed over. Thereafter, to defeat the claims of the defacto complainant, the accused allegedly settled his unencumbered property in favour of his wife. She sold it to third party for profit. According to the defacto complainant, against the representation, accused continued to run the business and made huge profits. Contending that the accused had committed offences punishable under Ws 406 and 420 of the Indian Penal Code, private complaint was laid. It was referred to the police under section 156(3) Cr.P.C and Annexure-A3 FIR was registered. After investigation, Annexure-A2 final report dated 17.11.2015 was laid for offences punishable under sections 406 and 420 of the Indian Penal Code.

(3.) Contending that the entire allegations are false and that, the whole facts were not disclosed by the defacto complainant and that, even the admitted facts only disclosed a dispute of civil nature, accused has preferred this Crl.M.C. It was contended that the defacto complainant relied on Annexure-A4 agreement dated 12.02014, a copy of which was produced along with the Crl.M.C. It was contended that, he had agreed to pay a sum of Rs.12, 53, 000/- by November 2014. It was contended that, he thereafter paid a sum of Rs.3, 28, 000/- by cheque, a copy of which was produced as Annexure-A4(3) . Annexure-A4(2) was a letter of the SBI dated 24.10.2014 stating that the cheque was honoured in favour of the defacto complainant. It was stated that, after the execution of the agreement dated 12.02014, all the business transactions between the parties were checked and the total amount due was fixed at Rs.3, 28, 000/- evidenced by Annexure-A7 agreement dated 21.04.2014. The cheque was given in full and final settlement and it was contended that the defacto complainant cannot claim any further right. It was contended that the second respondent had caused Annexure-A5 lawyer notice to be issued, alleging that the parties had entered into an agreement relating to running of another resort and a sum of Rs.12, 53, 000/- was received by the accused. It was alleged that the amount was not given. This was replied by Annexure-A6. The police, in the course of investigation, did not unearth any material to prove that the entire Rs.25, 00, 000/- was received by the accused. Hence, it was contended that, unless the full amount was paid, no criminal liability can be fastened on the petitioner herein. It was further contended that a criminal liability can be fastened on him, only if it is established that the accused had not given the partnership or the share as agreed upon. It was further contended that, no material was collected to show that the petitioner herein was running the resort as alleged by the defacto complainant. Hence, it was contended that the finding of the police is not sustainable and is liable to be quashed on the ground that, even the admitted facts disclosed only a civil dispute.