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2010 DIGILAW 5229 (MAD)

M. Palanisamy v. T. N. Chenniappan & Others

2010-12-01

ARUNA JAGADEESAN

body2010
Judgment :- This Criminal Appeal is filed by the complainant against the judgment dated 27.5.2002 passed in CC.No.199/2002 by the learned Judicial Magistrate II, Coimbatore, acquitting the Respondents/accused of all the charges under Sections 420 read with 109 of IPC. 2. The case of the Appellant/complainant is as follows:- a. The Appellant and the Respondents, who are related to each other, had entered into a sale agreement on 27.3.1995 with the owner of M/s.GSS Spinning Mills at Goundanpalayam to purchase the said Mill for a total consideration of Rs.60 Lakhs. The original sale agreement is with the Appellant and the copy of the same is Ex.P1. The Appellant paid a sum of Rs.1,00,000/-and the Respondents paid the remaining balance of Rs.59 lakhs from the joint account to the Mill Owner and on 1.4.1995, they had taken possession of the said Mill. In the said Mill, the Appellant is the Managing Director, 1st Respondent is the Executive Director, 2nd Respondent is the President and Respondents 3 and 4 are the Directors. the share of the Appellant in the said Mill is Rs.20 lakhs. b. On 19.4.1995, the Appellant and Respondents executed two sale deeds Ex.P2 and 3, in respect of the said Mill along with the land for Rs.7,60,000/- and Rs.50,000/-in the office of the Registrar, Gandhipuram under Document Nos.2099 and 2100 respectively. While so, the Respondents on 17.11.1995 sent a legal notice Ex.P4, stating that on 15.10.1995, the Appellant executed a sale agreement in favour of the Respondents for a sum of Rs.1,92,000/- and the Appellant received a sum of Rs.1,50,000/- as advance and calling the Appellant to execute the sale deed by receiving the balance consideration of Rs.42,000/-. The Appellant sent a reply legal notice Ex.P5 dated 23.11.1995, denying the said averments. d. In the mean while, on 13.10.1995, the 1st Respondent, by giving false statement to the Panchayat Executive Officer, Goundanpalayam that the said Mill belonged to him, got the tax records transferred in respect of the said Mill in his name. In this regard, the Appellant on 13.9.1996, sent a legal notice Ex.P6 to the District Collector and the said Panchayat Executive Officer. On 3.10.1996, the Assistant Director of Panchayat sent a reply to the Appellant, wherein the said Panchayat Executive Officer was directed to take necessary steps in that regard. In this regard, the Appellant on 13.9.1996, sent a legal notice Ex.P6 to the District Collector and the said Panchayat Executive Officer. On 3.10.1996, the Assistant Director of Panchayat sent a reply to the Appellant, wherein the said Panchayat Executive Officer was directed to take necessary steps in that regard. Again, the Appellant sent reminders Ex.7 to 9 on 23.12.1996, 3.3.1997 and 10.3.1997 respectively and also sent a reminder Ex.P10 on 13.3.1997 to the said Panchayat Executive Officer. On 21.3.1997, the said Panchayat Executive Officer cancelled the transfer of tax records effected in favour of the 1st Respondent and transferred the same in the name of the said Mill. The Appellant also sent a letter to the said Panchayat Executive Officer, requesting to cancel the taxation, stating that no land was purchased in the name of the Mill and in the name of the Appellant and it was purchased in the joint names of the Appellant and the Respondents. c. On 9.7.1997 the Appellant received a letter from the said Panchayat Executive Officer, informing that the mutation of tax records was effected in favour of the Appellant and the Respondents jointly. In the said circumstances, the 1st Respondent committed the offence of cheating, by transferring the tax records in his name on 13.10.1995 by giving false declaration, with the connivance of the Respondents 2 to 3. Hence, the Appellant has filed the said complaint against the Respondents for the offence under Sections 420 read with 109 of IPC. 3. The case was taken on file in CC.No.199/2002 on the file of the learned Judicial Magistrate ii, Coimbatore and necessary charges were framed. In order to substantiate the charges levelled against the accused, the complainant examined himself as PW.1 and examined five other witnesses PWs.2 to 6 and also marked Exs.P1 to P17. 4. On completion of the evidence, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of the complainant witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellants not guilty and acquitted them from all the charges levelled against them, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. The main contention of the learned counsel for the Appellant Mr.C.S.Dhanasekaran is that the 1st Respondent with the active assistance and complicity of the other Respondents had fraudulently transferred the tax assessment of the Mill namely GSS.Spinners into the personal name of the 1st Respondent and when the evidence disclosed willful misrepresentation by the 1st Respondent with requisite mens rea, the ingredients for an offence under Section 415 of Cr.PC is made out, but the court below failed to appreciate the evidence in a right perspective manner and acquitted the Respondents, which warrants interference by this court and took the court to the entire evidence adduced. 8. The evidence placed on record shows that the 1st Respondent has sent a lawyers notice dated 17.11.1995 which is marked as Ex.P4 to the Appellant that on 15.10.1995 the Appellant has entered into an agreement with the 1st Respondent agreeing to sell his 1/5th share in the properties for a total consideration of Rs.1,92,000/- and had received Rs.1,50,000/- as an advance and the balance amount of Rs.42,000/-was agreed to be paid at the time of Registration of the sale deed under Ex.P5 dated 23.11.195. The Appellant disputed the execution of the said agreement dated 15.10.1995 and denied the receipt of a sum of Rs.1,50,000/-or any other amount relinquishing his share in the properties. It is to be noted that the 1st Respondent had filed a suit for specific performance of the agreement in OS.No.1638/1995 based on the agreement allegedly executed by the Appellant. However, the Appellant has filed a complaint alleging that the agreement was forged and fabricated by the Respondents. 9. It is no doubt true that at the instance of the 1st Respondent, the tax assessment has been transferred in his name i.e. Cheniappan the Managing Director of the said Mill. Thereafter, it was transferred in the name of the Mill from the period 21.3.1997 and on the objection made by the Appellant. Again, it was transferred in the joint names of the Appellant and the Respondents on further representation made by the Appellant to rectify the assessment. 10. Thereafter, it was transferred in the name of the Mill from the period 21.3.1997 and on the objection made by the Appellant. Again, it was transferred in the joint names of the Appellant and the Respondents on further representation made by the Appellant to rectify the assessment. 10. The learned counsel for the Appellant strenuously contended that though the assessment was made in the name of the individual, i.e. the 1st Respondent herein only for a short period, the Respondent has applied for the transfer fraudulently and intentionally and therefore, he is guilty of an offence under Section 420 of IPC. 11. On the other hand, Mr.K.Kalyanasundaram, the learned counsel for the Respondents contended that in order to constitute a commission of offence under Section 415 of Cr.PC, two elements namely deception and dishonest inducement to do or omit to do some thing must exist and a mere dishonesty is not a criminal offence. He would submit that to establish cheating, the complainant must prove not only that he was induced to do or omit to do a certain act, but that inducement caused or likely to cause harm or damage to body, mind, reputation or property to the person so induced. The learned counsel pointed out that there was no willful misrepresentation or intentional act on the part of the Respondents inducing the authority to transfer the assessment of tax in the name of the 1st Respondent and further, there is no evidence that it caused any loss or injury to the Appellant. The learned counsel placed reliance on the decision of this court rendered in the case of G.R.Karthikeyan, Founder Trustee of P.S.Govindaswamy Naidu and Sons Charities Vs. G.Ragaswamy, Managing Trustee of P.S.Govindaswamy Naidu and Sons Charities, Avinashi Road, Peelamedu, Coimbatore [2009-2-LW-Crl-1258], wherein this court reiterated that in order to constitute an offence of cheating, the complainant must establish all the four factors which are presumed to be the four cardinal assets of humanity. The learned counsel also placed reliance on the decision of the Honourable Supreme Court rendered in the case of Gowrishankara Swamigalu Vs. State of Karnataka and another [2009-2-SCC-Crl-813] in support of his contention that when the Trial Court recorded a judgment of acquittal on assigning sufficient and cogent reasons, the same cannot be interfered with lightly, when the same was not called for. 12. State of Karnataka and another [2009-2-SCC-Crl-813] in support of his contention that when the Trial Court recorded a judgment of acquittal on assigning sufficient and cogent reasons, the same cannot be interfered with lightly, when the same was not called for. 12. In order to constitute the offence of cheating, the person who induces another to do an act must fraudulently or dishonestly induce the person so deceived to do that kind of act. This is the first class of act set out in the first part of Section 415 of Cr.PC. The second class of acts set forth in the section is the doing or omitting to do anything which the person so deceived would not do or omit to do if he were not so deceived. In both the class of acts, deception must be caused by the accused to generate inducement in the mind of the complainant. Therefore, a guilty intention is an essential ingredient of the offence of cheating and mens rea on the part of that person must be established. 13. In the present case, PW.1 has admitted in his evidence as extracted below:- TAMIL He has further stated as below:- TAMIL 14. From the above said testimony of PW.1, it is evident that there is a dispute between the parties regarding the management of the Mill. According to the 1st Respondent, they had entered into an agreement on 15.10.1995 with the Appellant after he failed to participate in the meetings of the Directors agreeing to sell his share for a sum of Rs.1,92,000/-. Though the same was denied by the Appellant, the evidence clearly disclosed that there is a civil dispute between them and a suit is also pending before the civil court. In the said circumstances, it cannot be said that the 1st Respondent had concealed the facts with an dishonest intention or fraudulently misrepresented the facts so as to induce the person to do or omit to do such act as alleged. In this case, there is absolutely no evidence to show that there was deception and the said deception was intended not only to induce the authority concerned to do or omit to do some thing, but also to cause damage to that person. In this case, there is absolutely no evidence to show that there was deception and the said deception was intended not only to induce the authority concerned to do or omit to do some thing, but also to cause damage to that person. It can only be said that incorrect information has been made by the 1st Respondent incautiously without any intention to deceive or injure, for, it is necessary to constitute an offence under Section 415 of Code of Criminal Procedure that the harm should be caused to the person deceived and not to anybody else. 15. In the present case, it is the case of the complainant that a false representation was made by the 1st Respondent to the Executive Officer, Kavundanpalayam and induced him to transfer the assessment in the name of the individual that is the 1st Respondent herein. There is absolutely no evidence to show that by doing any act, damage or injury has been caused to the said authority or to the complainant. Therefore, I am unable to agree with the submissions made by the learned counsel for the Appellant. I am of the considered opinion that the Trial Court has analysed the evidence in a right perspective manner and there is no illegality or infirmity to interfere with the judgment of acquittal recorded by Trial Court. 7. In the result, this Criminal Appeal is dismissed.