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2005 DIGILAW 317 (AP)

Cheekolu Nagaiah v. State Of A. P.

2005-04-01

V.V.S.RAO

body2005
V. V. S. RAO, J. ( 1 ) THE second respondent herein filed a private complaint on the file of the Court of the Judicial Magistrate of First class, Sullurpet against the petitioner alleging that the petitioner has committed offences punishable under Sections 406, 409, 418, 419 and 420 of INDIAN PENAL CODE, 1860 (IPC ). The facts, leading to filing the case, in brief, are noticed in the ensuing paragraph. ( 2 ) THE petitioner and first respondent are residing at PHC-1, Staff Quarters of shar at Sriharikota. The petitioner (hereafter called, the accused) is working as a driver-cum-operator in A. P. Fire Services, whereas the second respondent (hereafter called, the complainant) is resident of same colony. According to the complaint, the accused, who is an agent of M/s. Tamilnadu enterprises, Chennai, circulated pamphlets advertising a money circulation scheme promising various gifts to the members, who enroll other members. According to the scheme, every member who pays an amount of Rs. 150/- will get one hot pack, who enrolls two persons will get steel dish, one who enrolls four members will get one flask or water bottle and a person who enrolls 1,024, subscribers will be gifted with Hero honda Motorcycle or 75 gms of gold. The complainant allegedly enrolled 340 members. The accused, however, gave gifts to 153 persons, but did not give prizes/gifts to other 187 members. Having induced the complainant to enroll large number of persons in the money circulation scheme and having failed to give gifts as promised, it was alleged, the accused has committed offences under sections 406,409, 418,419 and 420 of IPC. ( 3 ) INITIALLY, the complainant approached Station House Officer of P. S. , sriharikota, who registered Case No. 11 of 1999 under Section 294-A of IPC. The same was taken on file as S. T. C. No. l 10 of 1999. The said case was closed by the Court of the judicial Magistrate of First Class, Sullurpet as Section 294-A stood repealed by then. The complainant again gave another complaint on 10-5-2000 to P. S. , Sullurpet. The police investigated into the crime and filed a report under Section 173 of Code of criminal Procedure, 1973 (Cr. P. C. ,) stating that it is a mistake of fact. The complainant again gave another complaint on 10-5-2000 to P. S. , Sullurpet. The police investigated into the crime and filed a report under Section 173 of Code of criminal Procedure, 1973 (Cr. P. C. ,) stating that it is a mistake of fact. Again the present complaint was filed before the Court of judicial Magistrate of First Class, Sullurpet, who took cognizance of the case on 13-11- 2002 and ordered issuance of non-bailable warrants, whereupon the present case is filed before this Court. ( 4 ) THIS Court admitted the matter on 9-11-2003 and stayed all proceedings before the learned Magistrate. The second respondent filed criminal M. P. No. 6591 of 2003 for vacating the interim order. The matter was heard at interlocutory stage itself with the consent of the parties and is being disposed of by this order. ( 5 ) A counter-affidavit is filed by the complainant denying all allegations. It is stated that the accused has cheated 340 members, who joined the scheme believing the accused that he would give the gifts. By not giving the gifts, the petitioner has misappropriated an amount of Rs. 51,000/- and therefore he has committed offences under Sections 406 and 420 of IPC. ( 6 ) THE learned Counsel for the petitioner submits that having acquitted the accused in S. T. C. No. 110 of 1999, the learned Magistrate was in error in taking cognizance of the case again, and that it was improper for the learned Magistrate to issue process when the police filed report that it is a mistake of fact. It is also contended that a reading of the complaint filed by the complainant does not disclose commission of any offence as there is no allegation by the complainant that she did not receive the promised gift for joining as member in the money circulation scheme. He placed reliance on the judgment of the Supreme Court in hridaya Ranjan Pd. Verma v. State of Bihar, 2000 (1) ALT (Crl.) 349 (SC ). ( 7 ) LEARNED Counsel for the second respondent submits that the accused collected a sum of Rs. 51,000/- from 340 members enrolled by the complainant but failed to give gifts to all of them. Therefore, the accused is liable for punishment for the offence of cheating and misappropriation of the amounts. ( 7 ) LEARNED Counsel for the second respondent submits that the accused collected a sum of Rs. 51,000/- from 340 members enrolled by the complainant but failed to give gifts to all of them. Therefore, the accused is liable for punishment for the offence of cheating and misappropriation of the amounts. According to the learned counsel, the accused acted as an agent of m/s. Tamilnadu Enterprises and therefore he is alone responsible for fulfilling the conditions of the scheme. ( 8 ) IN the background facts, the submissions lead to only point for consideration as to whether on a reading of the complaint, the complainant has made out any offence allegedly committed by the accused. ( 9 ) BY reason of catena of decisions of the Privy Council, the Supreme Court of india and this Court, it is well settled that the police function of investigating into crimes cannot be subject-matter of judicial scrutiny at the stage of investigation and/or prosecution. It is also well settled that the police would have no authority to undertake investigation if no cognizable offence is disclosed in the complaint brought to their notice. Any such unnecessary interference with liberty of the people in the name of investigation would offend higher right to liberty and also amounts to abuse of process of law. These two principles must always guide a Criminal Court of preliminary jurisdiction while exercising the extraordinary power of taking cognizance even on a private complaint presented to the Criminal Court. If the Criminal Court takes cognizance in a routine manner ignoring the fact that the complaint made to it does not disclose any offence, the same would be improper and liable to be quashed by the High Court. In state of H. P. v. Pirthi Chand, (1996) 2 SCC 37 = 1996 SCC (Crl.) 210, this principle was reiterated lucidly as under: the Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out of no further act could be done except to quash the charge-sheet. If it reaches a conclusion that no cognizable offence is made out of no further act could be done except to quash the charge-sheet. But only in exceptional cases, i. e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence- the Court may embark upon the consideration thereof and exercise the power. (emphasis supplied) 9. In this case, the complainant does not dispute that the accused was acting as an agent of M/s. Tamilnadu Enterprises, who introduced the money circulation scheme. The complainant also does not dispute that the money allegedly collected by the accused was sent to M/s. Tamilnadu Enterprises and that after joining the scheme, the complainant was given a gift as per the scheme. If the members enrolled by the complainant did not receive gifts as per the scheme, as alleged, the accused cannot be said to have caused damage or harm to the property of the complainant. Again the complaint does not fall within the definition of cheating as contained in Section 415 of IPC. In Hridaya ranjan Pd. Verma v. State of Bihar (supra), the Supreme Court made the following observations while dealing with the purport of Section 415 of IPC:"on a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. . . "". . . 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. . 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 give 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. . . . " ( 10 ) BY reading the complaint, in the present case, this Court is convinced that the complainant has not even made the basic allegations making out a case against the accused for offences under Sections 406, 409, 418, 419 and 420 of IPC. Further, though the complainant admits that the accused was an agent of M/s. Tamilnadu enterprises, curiously the said concern is let off. This would certainly lead to an inference that the criminal proceedings initiated by the complainant are not without malice. ( 11 ) IN the result, for the above reasons, this criminal petition is allowed and C. C. No. 300 of 2002 on the file of the Judicial magistrate of First Class, Sullurpet, Nellore district is quashed.