The Kerala High Court has ruled that non-payment of mobile bills does not amount to a criminal offence of cheating, as the transaction involved between the parties is one that arises out of a civil dispute.

Justice TV Anilkumar observed that the offence was a case of breach of trust or agreement.

The order was issued while allowing a plea by PV Abdul Hakkem of Kochi for quashing the FIR registered by Ernakulam Town South Police station against him by a private operator.

The prosecution’s charge against him was that he had failed to pay liability for user charges for a period of five months, from July 21 to November 21, 2006.Though he was asked to pay ₹97,678 for the said period, after making a partial payment of ₹10,580, he kept the balance in arrears.

According to the prosecution, the default in payment of the money amounted to cheating under Section 420 of Indian Penal Code.

Intention to cheat

The Court observed that “the purported liability of the petitioner seems to have arisen from breach of promise or agreement, other than a breach followed by any dishonest intention to cheat the complainant.”

The Court added that mere breach of trust or agreement would not by itself amount to a criminal offence under Section 420 of IPC.

In order to make out an offence under Section 420, the prosecution had to show that the dishonest intention to cheat had existed at the time when the alleged promise in question was made.

The petitioner contended that the transaction was based on an agreement between the parties and, therefore, the alleged liability under the transaction was purely of civil nature. He sought to quash the FIR and further criminal proceedings pending before Additional Chief Judicial Magistrate Court, Ernakulam.

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