MANGATTIL SIDDIQUE Vs. K M ABDUL LATHEEF

JUDGEMENT

(1.) This is a petition under S.482 of the Criminal Procedure Code to quash the proceedings in CC 136 of 1987 before the Judicial Magistrate of First Class, Cochin. Petitioners are the accused in the above case. First respondent (complainant) alleged that the petitioners have committed offence punishable under S.417 of the IPC. In the complaint it is alleged that the accused and Bava, a deceased son of the Ist accused bad approached the complainant and his friend Mohammed Ashique and offered them Visa for going to Saudi Arabia, that the first accused and the second accused along with Bava had represented that the second accused is very well placed in Saudi Arabia and promised visa to the complainant, complainant's brother, his friend Ashique and his sister's son Rahim and obtained from the complainant a sum of Rs.65,000/- on 28/08/1983, that accused 1 and 2 promised to provide them covetable jobs and that believing the representation they parted money and it was later found that they were cheated. Contention of the petitioners is that really no offence has been made out in the petition or in the sworn statement and therefore the Court below erred in taking cognizance of the case. It is contended that the cognizance taken by the Court below is without jurisdiction and without application of mind to the materials relevant at the cognizant stage.

(2.) Annexure A3 has been produced by the petitioners to show that the dispute between the parties is of a civil character and even on the basis of the complaint no offence under S.417 has been made out Reading of the complaint would show that the accused and Bava, a deceased son of the Ist accused bad approached the complainant and others and offered them visa to go abroad and obtained from the complainant a sum of Rs. 65,000/- and be parted the money believing the representation whereas it had been found later that it was only a fraudulent pretext in getting the money. The sworn statement of the complainant is in conformity with the complaint. The implications of the agreement propounded by the accused are yet to be considered at the trial stage. At this stage, it cannot be said that no offence has been made out under S.417 of the IPC.

(3.) The power under S.482 has to be exercised sparingly and not on mere assertions made by the parties. For invoking the inherent powers of the High Court the essential prerequisites are the following: