BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/09/2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD) No.12 of 2010 and M.P.(MD) Nos.2 and 3 of 2010 1.Desh Mither Popli 2.Nithis Popli .. Petitioners Vs. 1.State represented by The Inspector of Police, City Crime Branch, Madurai City, Madurai. 2.Sri Ram Ananth .. Respondents (R2 impleaded as per the order of this Court dated 12.02.2010 made in M.P.(MD) No.4 of 2010) Prayer Criminal Original Petition filed under Section 482 of Cr.P.C. praying to call for the records in C.C.No.190 of 2009 on the file of the Judicial Magistrate No.1, Madurai and quash the Charge Sheet by allowing this criminal original petition. !For Petitioners ... Mr.M.Vallinayagam ^For Respondents ... Mr.A.P.Balasubramani, G.A., (Crl. Side) for R1 Mr.Sri Ram Ananth Party in person :ORDER
This petition has been filed to call for the records in C.C.No.190 of 2009
on the file of the Judicial Magistrate No.1, Madurai and quash the Charge Sheet
by allowing this criminal original petition.
2. The learned counsel appearing for the petitioners would submit that the
alleged occurrence has been taken place in 1998 and the complaint has been given
in the year 2008 and no explanation has given for the delay in preferring the
complaint and the F.I.R. does not disclose the ingredients of the offence under
Section 420 I.P.C., He would further submit that the transactions are only
civil in nature and the complaint has failed to prove the dishonest intention of
the petitioners to cheat him. He would further submit that the F.I.R. and
charge sheet disclosed only the breach of civil liability and the grievance of
the defacto complainant is that the petitioners have received a sum of
Rs.5,40,000/- and promised to pay back the same and also promised to induce him
in the business as partner and thereafter, they could not fulfill the promise
and it will not attract the ingredients of Section 420 I.P.C. and hence, he
prayed for the quashing of the proceedings against the petitioner.
3.The 2nd respondent has filed a written argument stating that the 1st
petitioner is his close friend for nearly 25 years and the 2nd respondent has
extended the help in the year 1994 to 1995 while the 1st petitioner was in
trouble with his landlord of office and he played a major role not only enabling
him to purchase his house cum shop from late Mohamed Ariff, who agitated so much
with behaviour of the 1st petitioner, who filed so many cases against his
landlord Mohamed Ariff. He would further stated that he also gone to the extent
of advancing a sum of Rs.50,000/- to Mohamed Ariff by way of advance on behalf
of the petitioner by entering into sale agreement between himself and the
Mohamed Ariff for the house, since the said Mohamed Ariff did not want to sell
his property to the 1st petitioner at any cost.
4.He would further state that after the death of Mohamed Ariff in the year
1995, the 1st petitioner has purchased the said property from the legal heirs of
the said Mohamed Ariff in the year 1998 and at that time, the 2nd respondent
extended the financial assistant for a tune of Rs.3,90,000/- by way of bank pay
order, cheque and by way stamp paper for registration, but no money has been
returned. He would further submit that on 22.05.2009, because of the small
misunderstanding between the 2nd respondent and the 1st petitioner, the 2nd
respondent wrote a personal letter to all the family of the 1st petitioners,
but, he received a reply letter from the counsel of the 1st petitioner denying
all the contention of the letter of the 2nd respondent and hence, he preferred a
complaint on 08.09.2008 and he prayed for the dismissal of the application.
5.The learned Government Advocate (criminal side) would submit that on the
basis of the complaint given by the 2nd respondent, a case has been registered
for an offence under Section 420 I.P.C. and after investigation, charge sheet
has been filed under Section 420 I.P.C., wherein, it was specifically mentioned
that the 1st petitioner has given a false promise that he is ready to give a
share and received a sum of Rs.5,40,000/- and hence, he has committed the
offence under Section 420 I.P.C., and the investigating agency has properly
investigated the matter and filed the charge sheet and hence, he prayed for the
dismissal of the application.
6.I have considered the rival submissions made on either side and perused
the entire case diary.
7.On the basis of the complaint given by the 2nd respondent dated
08.09.2008, a case has been registered for the offence under Section 420 I.P.C
against the petitioners. While perusing the F.I.R., even though in the earlier
portion, it has been stated that the petitioners have to pay a sum of
Rs.5,40,000/- and for the balance amount, they agreed to pay interest @ 24% and
when the defacto complainant demanded the same, they refused to pay that amount
and gave a false reply, in the last lines, he has stated that they obtained
money after giving assurance that they will include the defacto complainant as
partner in their business. The relevant portion of the F.I.R. would run thus:
“vjph;kDjhuh;fs; kDjhUf;F tl;o ny;yhky; ehsJ Bjjp U.5,40,000/- buhf;fkhf
ju Btz;oaJ cs;sJ. vjph;kDjhh;fs; kDjhUf;F mtUila ghf;fp bjhiff;F 24% tl;o
jUtjhf xg;g[f;bfhz;Ls;shh;fs;. kDjhh; gyKiw BehpYk; bjhiyBgrp Kykhft[k;
ghf;fpj; bjhifia jpUk;g brYj;JkhW Bfl;ljw;F vjph;kDjhh;fs; gzj;ij jpUk;gr;
brYj;jhky; fhyk; jhH;j;jp te;jhh;fs;. kDjhuh; nWjpahf vjph;kDjhuh;fSf;F xU
fojk; vGjp ghf;fpj;bjhif jpUk;g brYj;JkhW Bfl;lhh;. kDjhuh;fs; vGjpa fojj;jpw;F
vjph;kDjhh;fs; fle;j 09.6.2008k; Bjjpad;W bfl;l vz;zj;Jld; tHf;fwpqh; Kyk;
gzj;jpw;F ve;jtpj bghWg;g[k; ny;iy vd;W gjpy; mspj;Js;shh;. mjd;gpwF kDjhuh;
kPz;Lk; 10 ehl;fs; fhy mtfhrk; bfhLj;J gjpy; mDg;gpa[s;shh;. vjph;kDjhh;fs;
kDjhUf;F gzj;ij jpUk;g brYj;j ve;jtpj Kaw;rpa[k; vLf;ftpy;iy. vjph;kDjhh;fs;
mth;fs; bra;J tUk; bjhHpypd; mgptpUj;jpf;fhf mjpf gzk; Bjit vd;Wk;, Bkw;go
gzj;ij ehd; bfhLj;jhy; vd;id gA;Fjhuuhf Brh;j;Jf; bfhs;tjhf Twp mjpf yhgk;
fpilf;Fk; vd Mir thh;j;ij Twpdhh;. 09.06.200k Bjjpad;W vd;id bjhHpypy;
Brh;j;Jf; bfhs;s KoahJ vd;Wk; gzk; ju KoahJ vd;Wk; Behpy; Twptpl;L, vdJ gzj;ij
mgfhpf;Fk; Behf;fj;Jld; vd;id Vkhw;wp vd;id ek;g itj;J ek;gpf;if Bkhro bra;J
Vkhw;wp cs;shh;fs;.”
8.Perusal of the 161(3) Cr.P.C. statement of one Rajan, who is the Chief
Manager of Federal Bank would prove the payment of the amount. In variably, the
wife of the 2nd respondent has stated in her 161(3) Cr.P.C. statement that the
petitioners have received the amount giving a false promise that they will
include the 2nd respondent as a partner in their business, but, on 09.06.2008,
they refused to include him as partner in their business and then only, the 2nd
respondent has given the complaint.
9.As per the submission of the learned counsel appearing for the
petitioners, the averments in the complaint and charge sheet will not amount to
cheating and the ingredients of Section 415 I.P.C has not been made out.
Cheating is defined in Section 415 of the Code as:
“415. Cheating.- Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do anything which
he would not do or omit if he were not so deceived, and which act or omission
causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to “cheat”.
Explanation. – A dishonest concealment of facts is a deception within the
meaning of this section.”
The section requires-
1) deception of any person;
2) (a) fraudulently or dishonestly inducing that person
(i) to deliver any property to any person, or
(ii)to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which
he would not do or omit if he were not so deceived, an which act or omission
causes or is likely to cause damage or harm to that person in body, mind,
reputation or property.”
10.At this juncture, it is also appropriate to consider the decision in
Hridaya Ranjan Prasad Verma and others Vs. State of Bhar and another reported in
(2000)4 Supreme Court Cases 168, wherein, this Court has held as follows:
11.In determining the question it has to be kept in mind that the
distinction between mere breach of contract and the offence of cheating is a
fine one. It depends upon the intention of the accused at the time of
inducement which may be judged by his subsequent conduct but for this subsequent
conduct is not the sole test. Mere breach of contract cannot given rise to
criminal prosecution for cheating unless fraudulent or dishonest intention is
shown right at the beginning of the transaction, that is the time when the
offence is said to have been committed. Therefore it is the intention which is
the gist of the offence. To hold a person guilty of cheating it is necessary to
show that he had fraudulent or dishonest intention at the time of making the
promise. From his mere failure to keep up promise subsequently such a culpable
intention right at the beginning, that is, when he made the promise cannot be
presumed.
12.Considering the above said decision along with the facts of the present
case, in the F.I.R. and 161(3) Cr.P.C. statement of the 2nd
respondent/complainant, there is no whisper that at the time of receiving the
amount, the petitioners have given assurance that they will include him as a
partner in their business. In the earlier portion of the F.I.R., it was stated
that the petitioners have agreed to repay the balance amount with interest @
24%. In such circumstances, the intention of the accused at the time of
inducement, will be judged by the subsequent conduct, but for this subsequent
conduct is not the sole test. Mere breach of contract cannot given rise to
criminal prosecution for cheating unless fraudulent or dishonest intention is
shown right at the beginning of the transaction, that is the time when the
offence is said to have been committed. In the averment in the F.I.R. and
161(3) Cr.P.C. statement, he never stated that at the time of receiving the
amount, he fraudulently dishonestly induced the 2nd respondent to deliver the
amount by made promise that the petitioners will include the 2nd respondent as
a sharer in their business. But, as already stated notice has been issued by
the 2nd respondent, in which the 2nd respondent received a reply with false
allegations and refused to repay the amount and then only, the complaint has
been given. This would show that there is a money transaction between the
parties and hence, the ingredients of Section 415 I.P.C has not been prima facie
made out against the petitioners and hence, I am of the opinion that this is a
fit case to quash the proceedings against the petitioners.
13.Accordingly, this criminal original petition is allowed and the
proceedings in C.C.No.190 of 2009 on the file of the Judicial Magistrate No.1,
Madurai is hereby quashed against the petitioners. Consequently, connected
miscellaneous petitions are also closed.
Arul
To
1. The Inspector of Police,
City Crime Branch,
Madurai City,
Madurai.
2.The Judicial Magistrate No.1,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
