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2007 DIGILAW 2891 (MAD)

Vijayakanth v. P. Mariammal

2007-09-06

G.RAJASURIA

body2007
Judgment :- 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. 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: .TAMIL 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. .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. 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 110. 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.