Bringing relief to mobile phone customers who are dragged into criminal cases by operators, the Kerala High Court observed that non-payment of mobile bills cannot be considered cheating. It is merely a case of breach of trust or agreement and does not fall under the purview of a criminal offence, the court said. Justice T V Anil Kumar issued the order while allowing the petition filed by P V Abdul Hakkem of Vyttila in Ernakulam seeking to quash an FIR registered by Ernakulam Town South Police station.
According to the prosecution, the petitioner, after having obtained a mobile postpaid connection in his name, failed to pay the bills for a period of five months from July 21, 2006 to November 21, 2006. The mobile company alleged the petitioner incurred a gross monetary liability of Rs 97,678 for the period and after making part payment of Rs 10,580, he kept the balance in arrears. The prosecution said the default amounted to cheating, punishable under Section 420 of IPC.
The petitioner submitted that the transaction was based on an agreement between the parties and therefore the alleged liability under the transaction was pure of civil nature. Bharati Airtel Ltd, the complainant in the case, did not appear despite serving notice on it.
The court observed this was a civil dispute. 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. “Mere breach of trust or agreement will 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 has to show that the dishonest intention to cheat existed at the time when the alleged promise in question was made,” held the court. The legal proposition does not match the materials on record as well as the allegation made out through the FIR. The court held the case was one of civil dispute between parties, hence it quashed the entire proceeding against the petitioner.―New Indian Express