Kerala High Court: In a petition filed under Section 482 of the Criminal Procedure Code, 1973 (‘CrPC’) (Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023) filed by accused for quashing of FIR against him for cheating Invest Bank, Sharjah, United Arab Emirates (‘Invest Bank’) out of Rs.135 Crores, Bechu Kurian Thomas, J., dismissed the petition while observing that the case did not fall under the purview of ‘exceptional circumstances’ that would warrant exercising powers under Section 482 CrPC.
Background
A complaint was filed against the accused, by Invest Bank, following an FIR was registered alleging that the accused had availed loan for a total sum of 68.159 million UAE dirhams, equivalent to Rs.135 crores, for the business purposes of his establishment by the name Hexsa Oil and Gas Services LLC and failed to repay 42.898 million UAE dirhams, committing the act of cheating.
It was alleged that the loan was disbursed to the accused upon his promise of repayment within 84 months and that the loan was for business purposes, with the accused also furnishing an undertaking to this effect. However, the accused failed to repay the loan amount. It was further alleged that upon visiting the establishment of the accused, the bank officials found that the loan amount had been diverted to his personal purposes. When confronted, the accused handed over 84 cheques, of which the very first cheque was dishonoured when presented.
It was submitted that thereafter, the accuse became unreachable and absconded Dubai. Upon verification it was found that the accused had set up business establishments under different names in India, utilising the money taken from the bank. A civil suit was filed against accused before the UAE Court, where it was held that the outstanding amount due to the bank was 48.898 million UAE dirhams, equivalent to more than Rs. 83 Crores, and that the accused had committed the offence of cheating.
It was contended by the accused that even if the entire allegations in the complaint and in the FIR remain uncontroverted, the same would still not make out an offence of cheating as it was a pure loan transaction that is revealed from the complaint. He further submitted that as even if allegations by the State were to be believed, the bank had initiated a civil suit for recovery of money and a decree had been passed, indicating that the offence of cheating as alleged could not be attracted at all.
It was submitted further that additional materials were submitted to the police by State which would evidence that initially an agreement was entered into between the parties between the parties, and that the actions of the accused that followed after obtaining the loan was evidence of his intention to defraud the bank.
It was contended by State that the crime was only at the stage of investigation and till date what had been revealed was a large-scale fraud and deception that was being played by the accused. It was further submitted that the accused had slowly procured the confidence of the bank with the intention of ultimately cheating it of a substantial amount and that the manner in which it was committed could be unravelled only by a proper investigation.
Decision and Analysis
Upon considering the contentions of the parties, the Court noted that mere breach of contract could not give rise to criminal prosecution for cheating, unless a fraudulent or dishonest intention was shown to have existed right from the beginning of the transaction, i.e., the time when the offence was alleged to have been committed. The Court referred to International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) v. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348 where the difference between a mere breach of contract and the offence of cheating would depend upon the intention of the accused at the time of the alleged incident.
The Court remarked, “Intention to deceive from the beginning is therefore the gist of the offence of cheating and a mere failure to keep a promise, subsequently cannot give rise to any assumption that there was culpable intention from the beginning.”
The Court said that Section 415 of the IPC did not limit the manner in which the deception may take place, and that deception could be by express words or by conduct.
The Court referred to Mahmood Ali v. State of UP ,2023 SCC OnLine SC 950)wherein it was held that to invoke inherent powers under Section 482 CrPC for quashing an FIR, the High Court had a duty to look not the details of the FIR or complaint for ascertaining whether the necessary ingredients to constitute the alleged offence had been disclosed or not.
The Court further referred to the decision in State of Haryana v. Bhajanlal 1992 Supp 1 SCC 335)where the principles for quashing proceedings under Section 482 of CrPC were laid down and the Court held that the power under Section 482 CrPC should be exercised ex debito justitiae to do real and substantial justice.
The Court said that merely because a civil proceeding has been initiated does not mean that a criminal offence could not be attracted, and from the nature of the present complaint and circumstances emerging from the records indicated the offence alleged against accused had legal basis.
The Court, therefore, dismissed the petition, holding that quashing the FIR at this would seriously prejudice the State and further this case did not fall under the purview of ‘exceptional circumstances’.
[Abdul Rahman v. State of Kerala, 2024 SCC OnLine Ker 3833, decided on 17-07-2024]
Advocates who appeared in this case :
Advocates for the accused: M.V. Amaresan, S.S.Aravind, S.Sreekumar (Sr)
Advocates for the State: Ashi M.C., Public Prosecutor, Johnson Gomez, Sanjay Johnson, Sreedevi S., Advocates
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