{"id":123903,"date":"2008-04-08T00:00:00","date_gmt":"2008-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajeswari-vs-the-state-rep-by-its-on-8-april-2008"},"modified":"2015-09-24T16:37:40","modified_gmt":"2015-09-24T11:07:40","slug":"rajeswari-vs-the-state-rep-by-its-on-8-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajeswari-vs-the-state-rep-by-its-on-8-april-2008","title":{"rendered":"Rajeswari vs The State Rep. By It’S on 8 April, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Rajeswari vs The State Rep. By It’S on 8 April, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 08\/04\/2008\n\nCORAM\nThe HONOURABLE MR.JUSTICE S.PALANIVELU\n\t\t\nCrl.O.P.(MD)No.8930 of 2006\nand\nM.P.(MD)Nos.2 & 3 of 2006\n\nRajeswari\t\t            \t\t  .. Petitioner\n\nVs.\n\nThe State rep. by it's\nInspector of Police,\nOrganized Crime Branch,\nMadurai\t\t\t\t\t\t   .. Respondent\n \t\nPrayer\n\nThis petition filed under Section 482 of Cr.P.C., praying to quash\nthe final report in C.C.No.91 of 2006 pending on the file of the learned\nJudicial Magistrate No.1, Ramanathapuram.\n\n!For petitioner   \t... Mr.N.Dilip Kumar\n\n^For Respondent\t\t... Mr.A.Palaniswamy\n\t\t\t    Addl.Public Prosecutor\n\n:ORDER\n<\/pre>\n
\tThe factual matrix of the case is as follows:-\n<\/p>\n
\tThe petitioner is second accused in Crime No.12 of 2003, registered under
\nSections 120B, 465, 468, 471 and 420 IPC on the file of the respondent Police.
\nThe first accused in this case is one Narasimman, the husband of the petitioner.
\nHe was working as Superintendent in the Office of the Superintendent of Police
\nin Ramanathapuram District.  Both the accused had been running a Textile Shop
\nunder the name and style of ‘Sri Rajarajeswari Textile Readymades’ and ‘Sri
\nRajarajeswari Silk’ in Ramanathapuram.  They desired to invest more money in the
\nsaid business for which they planned to gather money by propagating that they
\nwould pay more interest for the money saved with them.  By means of issuance of
\nsaving cards, pro-notes and other categories of security they collected hefty
\namounts.  They also indulged in making the public believe that they would repay
\nthe amount deposited by them with higher rate of interest.  In this process,
\nthey collected money from 24 persons on pro-notes to the tune of Rs.21,46,400\/-.
\nBut they had not returned back the money as promised.\n<\/p>\n
\t2.Further, they also received money from six persons by supplying saving
\ncards to the value of Rs.2,74,366\/-.  Moreover, Rs.7,02,500\/- was collected by
\nthem from another six persons. They also obtained  Rs.7,00,000\/-  from another
\nthree persons by signing in the security papers but defaulted to repay.  The
\naccused also got money to the tune of Rs.7,02,500\/- from six persons as loan but
\nthey did not repay to them.  In addition to this, both of them promised certain
\npolice personnel mis-representing that they would get loans from the Banks and
\npersuaded them to deposit the same with themselves and in that attempt, the
\nfirst accused issued pay certificates to nine Police Officials with false
\nparticulars so as to get Rs.6,50,000\/- from various Banks at Ramanathapuram
\nTaluk and appropriated the same by promising to pay higher rate of interest.\n<\/p>\n
\t3.The learned counsel for the petitioner Mr.Dilip Kumar, would strenuously
\ncontend that whatever be the allegations touching the alleged criminal
\nactivities of the first accused could not be allowed to prejudice the petitioner
\nherein, since she had played no role in the alleged transactions.  He further
\nstates that the petitioner had no knowledge about the transactions.  It is also
\nargued by him that the dispute covered by the criminal proceedings are of civil
\nin nature and no criminal offence is made out.\n<\/p>\n
\t4.The Court heard the learned Additional Public Prosecutor as regards the
\ncontentions put forth on behalf of the petitioner.\n<\/p>\n
\t5.The learned counsel for the petitioner would gather support from various
\ndecisions of the Hon’ble Supreme Court, in which the law has been laid down
\nproviding guidelines to deal with the identical matters on this subject.   He
\ngarnered support from the decision of the Apex Court in Hridaya Ranjan Prasad
\nVerma and Others Vs. State of Bihar and Another  reported in (2000 SCC (Cri)\n<\/p>\n
786), in which Their Lordships have referred the principles laid down by the
\nSupreme Court in Bhajan Lal’s case reported in (1992 Supp(1) SCC 335):(State of
\nHaryana Vs. Bhajan Lal): (1991 SCC (Cri) 426),  which are as follows:-\n<\/p>\n
     “102. (l) Where the allegations made in the first information report or the
\ncomplaint, even if they are taken at their face value and accepted in their
\nentirety do not prima facie constitute any offence or make out a case against
\nthe accused.\n<\/p>\n
   (2) Where the allegations in the first information report and other
\nmaterials, if any, accompanying the FIR do not disclose a cognizable offence,
\njustifying an investigation by police officers under Section 156(1) of the Code
\nexcept under an order of a Magistrate within the purview of Section 155(2) of
\nthe Code.\n<\/p>\n
\t(3).Where the uncontroverted allegations made in the FIR or complaint and
\nthe evidence collected in support of the same do not disclose the commission of
\nany offence and make out a case against the accused.\n<\/p>\n
\t(4).Where, the allegations in the FIR do not constitute a cognizable
\noffence but constitute only a non-cognizable offence, no investigation is
\npermitted by a police officer without an order of a Magistrate as contemplated
\nunder Section 155(2) of the Code.\n<\/p>\n
\t(5).Where the allegations made in the FIR or complaint are so absurd and
\ninherently improbable on the basis of which no prudent person can ever reach a
\njust conclusion that there is sufficient ground for proceeding against the
\naccused.\n<\/p>\n
\t(6).Where there is an express legal bar engrafted in any of the provisions
\nof the Code or the concerned Act (under which a criminal proceeding is
\ninstituted) to the institution and continuance of the proceedings and\/or where
\nthere is a specific provision in the Code or the concerned Act, providing
\nefficacious redress for the grievance of the aggrieved party.\n<\/p>\n
\t(7).Where a criminal proceeding is manifestly attended with mala fide
\nand\/or where the proceeding is maliciously instituted with an ulterior motive
\nfor wreaking vengeance on the accused and with a view to spite him due to
\nprivate and personal grudge.”\n<\/p>\n
\t6.In order to consider the quashment of proceedings against the accused in
\na criminal proceedings the court has to see whether the act of the complainant
\nor the police would come under any of the categories enumerated. As far as the
\nfacts of the present case are concerned, the present case could be considered in
\nthe light of category Nos.1&2 stated above.  While the statement of witnesses
\nrecorded under Section 161(3) Cr.P.C., have been scrutinized, it comes to  light
\nthat both the accused threw alluring promises to the witnesses either to pay
\nback the amount received from them with higher rate of interest or with some
\nother profits.  The learned counsel for the petitioner in this context would
\nalso state that the statement against this petitioner may not stand.  The fact
\ncould be ascertained only after appreciation of the oral evidence and this stage
\nis not an appropriate one to consider all those things.\n<\/p>\n
\t7.It is worth mentioning to state that the accused made fascinating
\nassurances to as many as 41 witnesses, who have been arrayed as witnesses No.1
\nto 41 in the charge sheet, falsely representing that they would be monetarily
\nbenefited.  A reading of the First Information Report undoubtedly discloses
\ncognizable offences against the accused and the allegations are thoroughly
\njustifying the investigation by the Police Officers.\n<\/p>\n
\t8.The learned counsel for the petitioner also placed reliance upon a
\ndecision reported in 2003 SCC (Cri) 703 (Ajay Mitra Vs. State of M.P. and
\nOthers) wherein the Hon’ble Supreme Court had an occasion to deal with the term
\n“mens rea” and the scope of Section 420 IPC.  The operative portion in the
\njudgment goes thus:-\n<\/p>\n
\t“16. A Guilty intention is an essential ingredient of the offence of
\ncheating.  In other words “mens rea” on the part of the accused must be
\nestablished before he can be convicted of an offence of cheating.  (See
\nJaswantrai Manilal Akhaney Vs. State of Bombay).  In Mahadeo Prasad Vs. State of
\nW.B. it was held as follows:- (AIR paras 4-5)<\/p>\n
\t\tWhere the charge against the accused under Section 420 in that he
\ninduced the complainant to part with his goods, on the understanding that the
\naccused would pay for the same on delivery but did not pay, if the accused had
\nat the time he promised to pay cash against delivery an intention to do so, the
\nfact that he did not pay would not covert the transaction into one of cheating.
\nBut if on the other hand he had no intension whatsoever to pay but merely said
\nthat he would do so in order to induce the complainant to part with the goods
\nthen a case of cheating would be established.\n<\/p>\n
\t17. In Hari Prasad Chamaria v. Bishun Kumar Surekha<\/a> it was held that
\nunless the complaint showed that the accused had dishonest or fraudulent
\nintention at the time the complainant parted with the money, it would not amount
\nto an offence under Section 420 IPC and it may only amount to breach of
\ncontract.  In G.V.Rao Vs. L.H.V Prasad it was reiterated that guilty intention
\nis an essential ingredient of the offence of cheating and, therefore, to secure
\nconviction “mens rea” on the part of the accused must be established.  It has
\nbeen further held that in order to constitute the offence of cheating, the
\nintention to deceive should be in existence at the time when the inducement was
\noffered.”\n<\/p>\n
\t9.In another Apex Court decision cited by the learned counsel for the
\npetitioner the following principles have been formulated.  In Anil Mahajan Vs.
\nBhor Industries Ltd., and Another reported in (2006 1 SCC (Cri) 746), it is
\nruled thus:-\n<\/p>\n
\t“6. ….Reliance has been placed, in that order, on various decisions of
\nthis court holding that from mere failure of a person to keep up promise
\nsubsequently, a culpable intention right at the beginning, that is , when he
\nmade the promises cannot be presumed.  A distinction has to be kept in mind
\nbetween mere breach of contract and the offence of cheating.  It depends upon
\nthe intention of the accused at the time of inducement.  The subsequent conduct
\nis not the sole test.  Mere breach of contract cannot give rise to criminal
\nprosecution for cheating unless fraudulent, dishonest intention is shown at the
\nbeginning of the transaction.”\n<\/p>\n
\t10.It is in the words of Hon’ble Supreme Court, mere use of the expression
\n‘cheating’ in the complaint is of no consequence. The criminal intention on the
\npart of the accused should be inferred on perusal of the allegation in the First
\nInformation Report.  When the case on hand is taken for consideration, the First
\nInformation Report and the statements recorded under Section 161(3) Cr.P.C would
\nvery well disclose sufficient allegation, which would prima facie show that the
\noffences under provisions of IPC are made out.\n<\/p>\n
\t11.It is well settled that every breach of contract would not give rise an
\noffence of cheating and only in those cases breach of of contract would amount
\nto cheating where there was deception played at the very inception.  If the
\nintention to cheat was developed later on, the same does not amount to cheating.
\nSaying the said words, the learned counsel for the petitioner contends that in
\nthe present case, the criminal intention on the part of the accused could not be
\ninferred at the inception of the alleged transaction.  As far as the settled
\nprinciples, the mala fide intention in the minds of the accused at the earliest
\npoint of time in the transaction alleged is a condition precedent to bring them
\nunder Section 420 IPC.  The said principle was already laid down by the Supreme
\nCourt in Hira Lal Hari Lal Bhagwati Vs. CBI, New Delhi reported in (2003 SCC
\n(Cri) 1121). The learned counsel for the petitioner would rely upon the decision
\nin Uma Shankar Gopalika Vs. State of Bihar and another reported in (2006 2 SCC
\n(Cri) 49) in which Their Lordships have held as follows:-\n<\/p>\n
\t“7. In our view petition of complaint does not disclose any criminal
\noffence at all much less any offence either under Section 420 or Section 120-B
\nIPC and the present case is a case of purely civil dispute between the parties
\nfor which remedy lies before a civil court by filing a properly constituted
\nsuit.  In our opinion, in view of these facts allowing the police investigation
\nto continue would amount to an abuse of the process of court and to prevent the
\nsame it was just and expedient for the High court to quash the same by
\nexercising the powers under Section 482 Cr.P.C., which it has erroneously
\nrefused”\n<\/p>\n
\t12.Following the dictum laid down in the above said decision, while the
\ncircumstances in the present case are taken into account, the First Information
\nReport itself is very clear to discern necessary mens rea in the minds of the
\naccused from very beginning.  To further state, the statement of witnesses are
\nalso available in such a way to show that even at the inception of each
\ntransaction, both the accused had conducted themselves in a way with deceitful
\nintention to get enriched with ill-gotten money.\n<\/p>\n
\t13.Following the well nigh settled principles of Supreme Court, on the
\nfacts of the case, it ought to be held that the petitioner is not at all
\nentitled to get quashment of the proceedings. The principles contained in the
\ndecisions relied upon by the petitioner would not come to her rescue, since she
\nhad acted along with the first accused with identical criminal intention of
\ndeceiving the witnesses.  If one or two occasions are available then the Court
\nmay consider that it may be of civil in nature but ‘mens rea’ on the part of the
\naccused could be inferred in numerous transactions involving hefty amount of
\nmoney, which depicts the avaricious desire entertained by the accused in amazing
\nwealth by unlawful means.  Such trend in the Society shall be discouraged.
\nBefore this Court on 16.11.2007 it was reported that the trial already commenced
\nbefore the trial Court and 17 witnesses were examined on the side of prosecution
\nout of 20 witnesses cited in the charge sheet. The case is in part-heard stage
\nbefore the trial Court and quashing of proceedings in this stage would be
\ninappropriate. Further, no appreciable grounds are also available in favour of
\nthe petitioner for quashing the criminal proceedings. The case has to see its
\nlogical end. The petition does not merit any consideration, which deserves
\ndismissal.  The observations made in this order will not in any way prejudice
\nthe merits of the case.\n<\/p>\n
\t14.In fine, the petition is dismissed. Consequently, the connected
\nmiscellaneous petitions are also dismissed.\n<\/p>\n
Mpk<\/p>\n
To<\/p>\n
1.The Judicial Magistrate No.1,
\n  Ramanathapuram.\n<\/p>\n
2.The Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Rajeswari vs The State Rep. By It’S on 8 April, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 08\/04\/2008 CORAM The HONOURABLE MR.JUSTICE S.PALANIVELU Crl.O.P.(MD)No.8930 of 2006 and M.P.(MD)Nos.2 & 3 of 2006 Rajeswari .. Petitioner Vs. The State rep. by it’s Inspector of Police, Organized Crime Branch, Madurai .. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-123903","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nRajeswari vs The State Rep. 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