Research › Browse › Judgment

Madras High Court · body

1988 DIGILAW 261 (MAD)

Shadili v. Uthaman

1988-07-11

SREEDHARAN

body1988
Order: Petitioner seeks to quash the Complaint copy of which is marked as Annexure Al, filed by the first respondent The allegations made in the Complaint are to the following effect. Petitioner was a businessman in Abu Dhabi. He approached the first respondent the Complainant who was employed as Branch Manager of A1-Hatha Food Trading Company, Abu Dhabi and purchased Chicken meat on 20-9-1986, 26-9-1986 and 31-9-1986 on credit basis, after issuing cheques for 5,000 Dirhams, 4,500 Dirhams and 11,560 Dirhams. At the time of issuing the cheques the petitioner made the first respondent believe that there is sufficient cash balance in the bank and that the cheques can be encashed at any time. When the cheques wee presented, the first respondent was told that there was no cash in the account of the petitioner. On enquiry the bank authorities informed that the petitioner had intimated them to stop all payments from his account The petitioner could not be found in Abu Dhabi. He had left that country and came over to Kerala. The amount for which the first respondent was cheated was reimbursed by him to the Company from out of his salary. The petitioner made the first respondent to believe that there was sufficient cash in his account in the bank and dishonestly induced the first respondent to deliver him the goods. But for the inducement, the first respondent would not have delivered the goods to the petitioner. The petitioner has thus committed the offence punishable underS.420 of the Indian Penal Code. A Complaint was lodged before the Indian Embassy at Abu Dhabi and the same was forwarded to the Deputy Secretary, Home Department, Government of Kerala, Trivandrum for investigation. The police did not Complete the investigation on the said Complaint Hence the Complaint annexure A1 before court 2. Petitioner wants the above Complaint to be quashed on two grounds: (1) no sanction from the Central Government was obtained for the investigation of the alleged offence since the entire transaction took place out side the Indian territory. (2) The allegations made by the first respondent in the Complaint do not make out an offence under the Indian Penal Code and hence the criminal court cannot proceed with the same. I will deal with these arguments in detail. 3. S.188 of the Code of Criminal Procedure deals with offences committed outside India. (2) The allegations made by the first respondent in the Complaint do not make out an offence under the Indian Penal Code and hence the criminal court cannot proceed with the same. I will deal with these arguments in detail. 3. S.188 of the Code of Criminal Procedure deals with offences committed outside India. Proviso to that Section reads: “Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.” The proviso applies to all enquiries and trials falling within Chapter XIII of the Code. Chapter XIII deals with jurisdiction of criminal courts in inquiries and trials.S.156 falls within Chapter XII of the Code. It allows the police to investigate cognizable cases which a court having jurisdiction over the local area would have power to inquire into or try under the provisions of Chapter XIII. So the police officers power to investigate cases are limited to those which the criminal court has power to inquire into or try under Chapter XIII. Offences committed outside India do not fall try under Chapter XIII. Offences committed outside India do not fall within the territorial limits of any court in India. That means such offences are not to be investigated by the police either.S.188 of the Code is an exception to this rule, for that exception to come into operation, the provisions contained in that section must be strictly Complied with. The court's power to inquire into or try an offence committed outside India as per that section depends on previous sanction of the Central Government The consequences of that, is the police officers’ power to investigate an offence committed outside India would also depend on the previous sanction of the Central Government UnderS.156(3) the Magistrate can order investigation of a case which the court can inquire into and try under Chapter XIII If the Magistrate has no territorial jurisdiction over the place where the offence was committed then the police cannot also investigate the offence in pursuance to an order underS.156(3) of the Code. In the instant case, the petitioner has nowhere stated in the Complaint that the Central Government has accorded sanction for the inquiry into or trial of the offence alleged in the Complaint In this circumstance the offence which is alleged to have been committed by the petitioner outside the territorial limits of India could not have been taken cognizance of by the court below or directed to be investigated by the police. The learned Magistrate acted without jurisdiction in ordering the police to inquire into the Complaint under S.156(3) of the Code. 4. In Paragraph 3 of the Complaint it is admitted that the supply of Chicken meat was on credit basis. The petitioner used to issue post dated cheques. (Surprisingly the first respondent has not given the name of the Bank on which the cheques were drawn. When the cheques were presented, the first respondent was told that there was no cash in the account of the petitioner (vide Paragraph 4 of the Complaint). In such a transaction where post dated cheques are issued, the party issuing the cheque has no case that he is having sufficient funds in the bank on the date of the issue of the cheques for honouring them. He has only an expectation to make available sufficient funds for the bank to honour the cheques on a future date when it is presented. If he fails to raise sufficient funds to honour the cheque it will amount to a failure to fulfil the promise. The said failure cannot result in the commission of an offence under the Penal Code. The failure on the part of the person issuing post dated cheques to raise sufficient funds with the bank to pay the amount covered by the cheque will not constitute an offence underS.420 of the Indian Penal Code. In State of Kerala v. A. Pareed Pillai State of Kerala v. A. Pareed Pillai A.I.R. 1973 S.C. 326: (1972) 2 S.C.C. 681: 1973 Crl.L.J. 1343: (1972) S.C.C. (Crl) 705 it is observed: “To hold a person guilty of the offence of cheating, it has to be show that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise.” The petitioner herein issued post dated cheques. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise.” The petitioner herein issued post dated cheques. The fact that he issued post dated cheques goes to show that he had no funds sufficient to pay the amount covered by the cheques on the dates of its issue. He expected to make funds available with the bank for honouring the cheque on the due dates. He failed in fulfilling that promise. The said failure can give rise only to civil liability and not to a criminal offence. The actions of the petitioner in the above circumstance cannot constitute an offence under the Penal Code. It is not an offence, much less an offence underS.420, under the Indian Penal Code. Since the acts done by the petitioner if committed in India could not constitute an offence under the Penal Code, those acts carried out in a foreign country cannot constitute an offence for the Code to apply. In this view of the matter also the proceedings initiated in pursuance to Annexure Al Complaint have to be quashed. 5. The materials now placed before court do not disclose any offence. In such a situation no investigation can be permitted to be carried out because it will amount to above of process of court 6. In view of what has been stated above, I allow this petition and quash the entire proceedings taken in pursuance to C.MP.No.2091 of 1987 filed by the first respondent before the Judicial First Class Magistrate's Court, Cannanore. B.S. ----- Petition allowed.