BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/09/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.5590 of 2006 and M.P(MD)Nos.1 and 2 of 2006 Vijayakanth ... Petitioner Vs P.Mariammal ... Respondent Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records in C.C.No.207 of 2006 on the file of the learned Judicial Magistrate No.II, Srivilliputtur and quash the same. !For Petitioner ... Mr.A.Shivaji ^For Respondent ... Mr.K.Vinayagam :ORDER
This petition has been filed to call for the records in C.C.No.207 of 2006
on the file of the learned Judicial Magistrate No.II, Srivilliputtur and quash
the same.
2. Heard both sides.
3. The facts giving rise to the filing of this petition as stood exposited
from the records could be portrayed and parodied thus:
The case in C.C.No.207 of 2006 emerged on the file of the learned Judicial
Magistrate No.II, Srivilliputtur, consequent upon the complaint lodged by
Mariammal, the respondent/complainant through his power agent for the offences
punishable under Sections 420, 406 read with Section 34 I.P.C as against A.1,
L.K.Sudeesh and A.2, Vijayakanth, the petitioner herein.
4. Being aggrieved by and dissatisfied with, the method and manner in
which cognizance has been taken, the petitioner/A.2 has filed this petition on
the main ground that he had nothing to do with the alleged contract or promise
which allegedly emerged between A.1 and the complainant concerned; the Central
Board of Film Certificate relating to the film “Narasimma’ would demonstrate
that the applicant for obtaining such certificates, was one Ms.Captain Cine
Creations and the Producer was L.K.Sudeesh; there was no promise at all by the
petitioner to the respondent that in the event of the complainant incurring any
loss in distributing the film ‘Narasimma’ for screening in theatres, the
petitioner would reimburse her and the ingredients of Section 420 I.P.C have not
been made out as against the petitioner.
5. The learned Counsel for the petitioner would argue by drawing the
attention of this Court to the photocopy of the certificate issued by the
Central Board of Film Certification that the name of the petitioner is not found
therein; over and above that initially the advocate notice dated 11.07.2003
issued by the Advocate Pachayappan on behalf of the complainant did not refer to
the name of the petitioner herein or his alleged role in entrustment of the
distributorship to the complaint.
6. Per contra, the learned Counsel for the respondent would deny and
refute the allegations/averments made on the side of the petitioner and contend
that M/s.Captain Cine Creations is a partnership firm composed of both the
accused Nos.1 and 2 and in fact, the petitioner who happened to be the actor in
that film also happened to be the producer virtually even though, in the Central
Board of Film Certification, the name of L.K.Sudeesh is shown as producer and
the said L.K.Sudeesh(A.1) is none but the brother-in-law of the petitioner
herein.
7. The learned Counsel for the petitioner would draw the attention of this
Court to the paragraph No.3 of the complaint and it is extracted hereunder for
ready reference:
“3) kDjhh; i\ Kfthpapy; trpj;J tUfpwhh;. vjph;kDjhh;fs; i\ Kfthpapy;
bjhHpy; bra;J tUfpd;whh;fs;. 2K; vjph;kDjhh; eoj;J btspte;j eurpk;kh vd;w
jkpH; jpiug;glj;ij jkpH;ehl;oy; jpUbey;ntyp khtl;l Vhpahtpy; jhd; tpdpnahfk;
bra;a tpUk;g[tjhf kDjhh; fle;j 2001k; Mz;L nfl;lhh;. U:.55>00>000-00 buhf;fkhf
bfhLf;f ntz;Lk; vd vjph;kDjhh;fs; bjhptpj;jdh;. mjd; bgahpy; kDjhh; jdJ fzth;
v];.gyuhkd; K:ykhf U:.55>00>000-00 (U:gha; Ik;gj;ije;J yl;rk;) jpiuauq;F
chpikahsh;fs; K:yk; tR{y; bra;J mjid 1k; vjph;kDjhh; trk; nehpy;
jpUtpy;ypg[j;J}hpy; cs;s jdJ fzth; tPl;oy; itj;J> kDjhh;> 1k; vjph;kDjhhplk;
ed;dk;gpf;ifapd; bgahpy; xg;gilj;jhh;. i\ jpiug;glj;jpd; 10 gpujpfis bfhLf;f
vjph;kDjhh;fs; xg;g[f;bfhz;ldh;. 2K; vjph;kDjhh; bjhiyngrp K:yk; ,e;j tptuq;fis
xg;g[f;bfhz;lhh;. gzj;ij bgw;Wf; bfhs;Sk; nghJ tR{yhFk; bjhifapy; kDjhuUf;F 20%
bfhLg;gJ vd ,Ujug;gpYk; xg;g[f;bfhs;sg;gl;lJ. mr;rkak; kDjhuhplk; vGjhj
gj;jpuq;fspy; 1k; vjph;kDjhh; ifbahg;gk; bgw;whh;. mtw;wpy; xg;ge;jk; vGjp mjd;
gpujpapid kDjhuUf;F tHq;Ftjhf ,U jug;gpYk; xg;g[f;bfhs;sg;gl;lJ. Mdhy; ,d;W tiu
tHq;fg;gltpy;iy.”
8. Placing reliance on the aforesaid extract, he would develop his
argument that even though along with the first accused, the petitioner was not
present at the time of Mariammal entrusting a sum of Rs.55,00,000/- (Rupees
fifty five lakhs only) to A.1, yet over telephone, the petitioner subsequently
confirmed to the arrangement and hence, in these circumstances, it cannot be
stated that the petitioner had no mens rea to cheat the complainant.
9. In this factual matrix, it has to be seen whether ex facie and prima
facie the petitioner could be held to have had requisite mens rea in cheating
the complainant so as to compel him to undergo the ordeal of trial?
10. At the earliest point of time, the complainant in the said notice
dated 11.07.2003, made no whisper at all about the petitioner herein as the one
who telephonically confirmed the alleged oral agreement entered into between the
first accused and the complainant relating to reimbursement of the loss. To
constitute an offence of cheating, at the time of promise, there should be mens
rea to cheat and for which there should be at least sufficient averments in the
complaint or in the earlier advocate notice, but it was not so.
11. To the risk of repetition without being tautologous, I would hold that
in the earlier notice dated 11.07.2003 issued by the complainant through her
advocate, absolutely there was no whisper about the role of he petitioner in
allegedly cheating the complainant. The last paragraph of the notice is
reproduced hereunder for ready reference:
“You are hereby called upon to settle the losses suffered by my client to
the tune of Rs.26,00,000/- either by way of making the payment of through issue
of the distribution right for the forth coming Vijayaganth Film “THENNAVAN”
forth with the receipt of this notice failing which my client will be
constrained to take appropriate legal action against you and both civil and
criminal and further holding you liable for all the cost and consequences
arising thereon. And also liable to pay a sum of Rs.1,000/- towards the cost of
this notice.”
12. In fact, the complainant wanted the distributorship for one other film
so as to get herself compensated and as such, the sum and substance of the
notice would convey that there was some alleged breach of contract. Had there
been real cheating, it is not known as to what prevented or deterred her not to
set the criminal law in motion at the earliest point of time without negotiating
for obtaining distributorship for one other film ‘Thennavan’.
13. Be that as it may, this is a matter between the first accused and the
complainant which shall be decided by the trial Court. Here, relating to the
petitioner, absolutely there is no incriminating version in that notice and even
in the complaint also as set out supra, there is nothing to fasten the
petitioner/A.2 that he had mens rea at the relevant time to cheat the
petitioner.
14. In the said notice dated 11.07.2003, M/s.Captain Cine Creations is
described as Proprietary concern represented by A.1, L.K.Sudeesh and in such a
case, it is not known as to how it could be argued on the side of the
complainant that M/s.Captain Cine Creations is a partnership firm in which the
petitioner herein is also one of the partners.
15. For the purpose of deciding this Criminal Original Petition, this
Court is not very much particular as to whether M/s.Captain Cine Creations is a
Proprietary firm or a partnership firm. There is nothing found expounded or
expatiated, detailed or delineated, portrayed or narrated that the
petitioner/A.2 lulled the complainant to believe that he would compensate even
though he had no intention to compensate. No circumstance also is found set out
in the notice or complaint.
16. The learned Counsel for the petitioner also cited the decision of this
Court in Ganesan v. State reported in 1995 Crl.L.J. 1303. An excerpt from it,
would run thus:
“14. In the circumstances, there could be no doubt that the impugned
complaint either by itself or read along with FIR in Crime No.1291/89 and the
telegram dated 18.10.1989 does not disclose any offence under Section 420 I.P.C.
Facts necessary to satisfy the ingredients so constitute an offence under
Section 420 I.P.C are absent in the said complaint. In the absence of any
material to hold that there was intention to deceive on the part of the quash
petitioner when he had received the sum of Rs.1,15,000/- from the complainant,
proceeding further with the investigation of the case would not serve any
purpose. Evidently there is nothing in the complaint to show that the
petitioner had either dishonest or fraudulent intention at the time the
complainant parted with the money. So, this is a fit case where the proceedings
are to be quashed by invoking the inherent powers of this Court under Section
482 Cr.P.C.”
17. The aforesaid decision is applicable to this case. At the relevant
time of alleged promise, there should have been intention to cheat, but for the
foregoing reasons, I do not see that there is any prima facie case available as
per the records and in such a case, the prosecution as against the petitioner in
C.C.No.207 of 2006 on the file of the learned Judicial Magistrate No.II,
Srivilliputtur, is quashed and as against the first accused, the trial Court is
at liberty to proceed further and dispose of the matter as per law.
18. With the above observations, this petition is disposed of.
Consequently, connected M.P(MD)Nos.1 and 2 of 2007 are closed.
rsb
To
The Judicial Magistrate No.II, Srivilliputtur.