SUDHEER Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.1400/2019 of Pooyappally Police Station, Kollam, which has bee registered for offences punishable under Sec.420 of IPC , on the basis of the private criminal complaint filed by the lady defacto complainant. The learned Magistrate had issued the directions under Sec.156(3) of Cr.PC , whereby the Police was directed to register crime and investigate the matters raised in the abovesaid private criminal complaint. On this basis, the above crime has been registered.

(2.) The brief of prosecution case is that, the petitioner is living in the immediate neighbourhood of the lady defacto complainant and that both were on cordial in social terms and both used to co-operate in the household functions of each other and that the petitioner had earlier told her that he is having great financial difficulties and that sought financial help, to which she informed him that she is a widow and it is not possible to help him financially. Thereupon the petitioner impressed upon her that she should hand over her gold ornaments to him so that he could pledge the same with a Financial Institution to raise money and that he will clear the loan immediately and then he would have returned back her gold ornaments. On this assurance she was constrained to hand over her gold ornaments coming to 10.5 sovereigns to the petitioner, who later informed her that he has taken a gold loan from the Financial Institution. Later, the lady came to know that the petitioner has not cleared the gold loan account and also she came to know from the Financial Institution that actually the gold loan transaction has been taken not in the name of the petitioner but in the name of two of his friends. That the lady made further plea to the petitioner to clear the loan and returned back her gold ornaments. To this the petitioner said he does not have any financial resources and he had told her that she may mortgage her personal immovable property with a Co-operative Bank, so that a loan is cleared by the Co-operative Bank and that the proceeds of the said loan could be utilised by the petitioner to clear the gold loan account in the Finance Company and so as to get back the gold ornaments, which will be returned to her. Further that very crucially the petitioner has assured her that he would clear both the principal amount and the entire interest burden of the said loan transaction to be taken in her name with the Co-operative Bank after mortgaging her personal landed property. Since the lady desperately wanted to get back her gold ornaments, she agreed to the above said proposal of the petitioner and she had handed over her title deeds of landed property and loan transaction was thus cleared and the loan proceeds from the Co-operative Bank was utilised to clear off the gold loan and the gold ornaments were returned by the petitioner to the lady and thereafter the lady came to know that the petitioner has not moved a little finger to clear any of the arrears in the new loan account taken from the Co-operative Bank. The lady thereupon had sought the intervention of a local member of the Panchayath and the pleas of the lady despite persuasions and interventions from many people in the locality, it has fallen on deaf ear of the petitioner and he has not cleared the loan. That the above said consistent conduct of the petitioner, more particularly, in relation to the taking of the second loan account in the name of the lady and not clearing any loan arrears in that regard, would clearly be indicative of the fact that the petitioner was having dishonest intention right from the commencement of at least the second loan transaction in order to cause wrongful loss to the lady and unlawful gain to the petitioner and that the petitioner has thus cheated the lady and has committed the above said offence. Further it is also stated that since the petitioner had not cleared the loan arrears in the Co- operative Bank, the said Bank had initiated attachment proceedings against the lady defacto complainant's property and thereupon left with no help she was constrained to clear Rs.40,000/- to the Co- operative Bank and then she was forced to renew the loan account in her name for a subsequent period to ward off the evil of sale of her property.

(3.) The learned counsel appearing for the petitioner would vehemently urge that the abovesaid case will not disclose the criminal offence of cheating and that it is only on account of the financial difficulty of the petitioner that he could not clear his liabilities and on that basis, it cannot imputed for a second that the petitioner had dishonest mens rea to cause wrongful loss to the lady or cause wrongful gain to him etc,. Further that the petitioner had fully co-operate with the investigation agency in the interrogation process and that there is no necessity for custodial interrogation of the petitioner in the facts of this case.