IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.09.2008 CORAM THE HONOURABLE MR.JUSTICE R. REGUPATHI CRL.O.P. No. 7743 of 2006 & CRL.M.P.No. 2025 of 2006 Liyakath Ali Rahman ..Petitioner Vs. 1. State rep. by Inspector of Police, Central Crime Branch,Salem City, Salem District.(Cr.No. 1 of 2006) 2. Mr. Mohamed Ali Bin Mohamed Ibrahim rep. by Power Agent Mr.Nizam ..Respondents Prayer: Petition under Section 482 Cr.P.C. to call for the entire records relating to the case in Crime No. 1 o f 2006 on the file of the respondent herein and quash the same. For Petitioner :: Mr.D. Shivakumaran For Respondents :: Mr.J.C. Durairaj, GA (Crl.Side) for R1 Mr.K. Manoj Kumar, Legal Aid Counsel for R2 O R D E R
A private complaint has been preferred before the learned Judicial Magistrate, Salem and the same was entertained under Section 200 Cr.P.C. for offences punishable under Sections 406 and 420 I.P.C. The learned Magistrate forwarded the complaint to the respondent Police under Section 156(3) Cr.P.C. for investigation.
2. It is alleged in the complaint that the petitioner/accused had borrowed a sum of Rs.7 lakhs for building a house at Hasthampatti, Salem District during July 2003 to November, 2003. Though it was promised that the entire amount would be repaid within a period of 6 months, inspite of repeated demands made by the complainant, the petitioner/accused refused to repay the same and threatened the complainant with dire consequences. In such circumstance, the private complaint has been preferred before the learned Magistrate.
3. Learned counsel for the petitioner submits that the loan transaction took place in Malaysia at the time when the petitioner/accused was working with the complainant. Though it has been alleged that the accused threatened the complainant, no particulars regarding the date and time has been mentioned at paragraph 5 of the complaint. A perusal of the allegations made in the complaint would show that the transaction is purely of civil nature. According to the learned counsel, admittedly, payment of loan has been made only in Malaysia. In such circumstance, cause of action had arisen at Malaysia and the present complaint, which has been preferred before the learned Magistrate, Salem, cannot be sustained and therefore, seeks quashing of the First Information Report and the proceedings pending before the respondent Police.
4. At the time, when the case was taken up for hearing, there was no representation by the 2nd respondent/defacto complainant. Therefore, this Court directed the Registry to seek the assistance of counsel from Legal Services Authority. Accordingly, Mr.Manoj Kumar, learned counsel appeared and contended that subsequent to the loan transaction, a letter of undertaking has been given by the petitioner/accused and in such circumstance, investigation of the case by the respondent Police must be concluded and on conclusion of the investigation, materials may be collected to substantiate the offence alleged against the petitioner/accused.
5. Heard the submissions of the learned counsel on either side and perused the materials on record.
6. Prima facie, in respect of allegations under Sections 406 and 420 I.P.C., dishonest intention at the inception must be substantiated. Admittedly, the petitioner/accused has borrowed a sum of Rs.7 lakhs during 2003 at Malaysia. No documentary evidence either in the form of a promissory note or any other document is available to prove the loan transaction, eventhough it has been stated that a letter of admission is available with the complainant to substantiate the allegation. However, the fact remains that the transaction is purely of civil nature. Since, there was no document available with the complainant, a private complaint has been preferred before the learned Magistrate. Further, as regards the allegation that the petitioner/accused threatened the complainant when he was asked to repay the loan amount is concerned, as rightly contended by the learned counsel for the petitioner, the date and time of the alleged threat by the petitioner/accused is not even mentioned in the complaint. The entire loan transaction is alleged to have taken place at Malaysia and after the petitioner/accused returned to India, the demand has been made. However, the payment was only at Malaysia and therefore, the cause of action had arisen only at Malaysia.
7. Apart from the allegations made in the complaint, no other material, either in the form of witnesses or documents, are made available at the time of filing of the complaint. At any rate, the transaction is civil in nature and in such circumstances, I find no material to substantiate the allegation under Sections 406 and 420 I.P.C. Allowing such a complaint to be investigated would be abuse of process of Court. Therefore, I am of the view that both the private complaint as well as the First Information Report registered by the respondent Police have to be quashed. Accordingly, they are quashed and the criminal original petition is allowed. Connected Crl.M.P. is closed.
nv