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2022 DIGILAW 3289 (MAD)

Mageshbabu v. A. D. S. Sugumar

2022-09-13

N.SATHISH KUMAR

body2022
JUDGMENT (Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.to call for the records in C.C.No.5 of 2022 pending on the file of the learned Judicial Magistrate No.1, Thiruvannamalai and quash the same.) 1. This Criminal Original Petition has been filed to quash the criminal proceedings in C.C.No.5 of 2022 which has taken cognizance for the offence under Section 120(b), 420, 294(b) and 506(1) I.P.C. on the file of the learned Judicial Magistrat No.1, Thiruvannamalai. 2. The crux of the allegations in the private complaint is as follows: 2.a. The defactco complainant and the accused family are known for the past 30 years. The accused family running a Petrol Bunk and Rice Mill and there were a financial transaction between them for many years. The accused have borrowed money from the defacto complainant and repaid. When the matter stood thus, on 02.10.2018 the Petitioner herein approached the defacto complainant and informed him that A7, sister son of A1, required urgently Rupees one Crore in order to redeem his property and it is also stated that A1 and A7 are doing Rice Mill business in Chennai. As A7 is not known to the defacto complainant at the instance of A1 to A4 the defacto complainant advanced rupees one Crore loan to A7. All the accused were assured that the sum would be returned within a month. At the time of receiving of the amount, A7 has acknowledged the receipt of money and also handed over the cheques. However, A1 to A4 have not made any attempt to get the money from A7. Whenever the defacto complainant asked money, A1 abused him. In respect of which a panchayat was also conduced on 26.11.2020, wherein it was agreed that the amount would be returned after the marriage of A1's daughter. However, the amount has not been paid. Thereafter, A7 has given 5 cheques, each Rs.20 lakhs dated 17.02.2021, 24.02.2021, 10.03.2021, 20.03.2021 and 30.03.2021. When the cheques were presented for collection they were dishonoured. In this regard the defacto complainant has given a complaint before the Superintendent of Police and he has also filed a petition under Section 156(3) Cr.P.C.in Crl.M.P.No.1076 of 2021. However, the District Crime Branch has filed a false report which was ordered to be investigated under Section 202 Cr.P.C.to the Respondent Police. Again the police have filed a report after investigation. However, the District Crime Branch has filed a false report which was ordered to be investigated under Section 202 Cr.P.C.to the Respondent Police. Again the police have filed a report after investigation. Thereafter, the Court took cognizance of the offence on the basis of the private complaint. 2.b. Mr.V. Lakshminarayanan, learned counsel appearing for the Petitioners would submit that the Petitioner has been robed unnecessarily. Merely because A7 has received loan amount from the defact complainant and failed to repay the same, only in order to put a pressure to the family members, the petitioners have been unnecessarily robed. It is his contention that a similar complaint has been given under Sec.156(3) Cr.P.C., and the District Crime Branch has enquired thoroughly as against the Petitioners and held that no criminal offence is made out and filed a detailed report. Thereafter, private complaint has been filed without challenging the earlier order. The Maigstrate has directed the police to enquire the complaints pending in different police stations, wherein the respondent police given a report as if the offence is made out. It is nothing but forum shopping and different police station have been used to robe the entire family members. It is his contention that the present petitioners have been arrayed as A1 to A4. A1 and A4 are brothers, A2 is wife of A1 and A3 is daughter of A1. A7 is the sister son of A1. A5 to A7 are not before this Court. 2.c. It is his contention that admittedly previous complaint has been given to the District Crime Branch wherein enquiry was made and report has been filed by the District Crime Branch to the effect that there is no criminal case made out. Thereafter, complaint has been forwarded to the different police stations and reports have been obtained as if offence is made out and required police investigation. It is his contention that previous report of the police, which was filed pursuant to the order passed under Section 156(3) of Cr.P.C., not even challenged. 2.d. Be that as it may. The entire allegation in the private complaint makes it clear that the only allegation against the petitioners is that there are relative of A7 who has received Rs.one Crore by issuing written documents and cheques. 2.d. Be that as it may. The entire allegation in the private complaint makes it clear that the only allegation against the petitioners is that there are relative of A7 who has received Rs.one Crore by issuing written documents and cheques. Therefore, merely because the petitioners introduced A7 to the defacto complainant, it cannot be said that there was an inducement or deception played by all the accused. It is his further contention that mere failure to pay the amount without intention to deceive the defacto complainant to part with the amount, the offence of cheating would not be attracted. Merely the family members recommending for loan, conspiracy also cannot be inferred. It is also contended by the learned counsel that the other allegations with regard to the abusive words and criminal intimidation are general in nature, even entire complaint is taken in the face value, same would not attract any of the offence against the petitioners. Hence, submitted that private complaint against these petitioners in an ordinary money transaction is nothing but abuse of proess of law. The very complaint itself indicate that there were money transaction between A1 family and the Defacto complainant for more than 30 years and money borrowed by Al family have been repaid promptly. Therefore, merely because A7 has failed to honour his commitment the entire family members cannot be prosecuted. Hence submitted that the entire prosecution is nothing but abuse of process of law. Hence seeks to quash the entire criminal proceedings. 3. Whereas the learned counsel appearing for the Respondent Mr. M. Mohammed Riaz submitted that the entire allegation in the complaint itself indicate that only at the instance of A1 to A5, the money advanced to A7. The accused have made the defacto complainant to believe that A7 is means to pay the amount. Therefore, the deception is very much available on the part of the accused from the very inception. Hence, submitted that the quashment of the private complaint does not arise at all. Further it is his contention that the earlier complaint given to the Deputy Superintendent of Police was referred as a civil case. As no final report has been filed, the question of challenging the report does not arise at all. Hence, submitted that the quashment of the private complaint does not arise at all. Further it is his contention that the earlier complaint given to the Deputy Superintendent of Police was referred as a civil case. As no final report has been filed, the question of challenging the report does not arise at all. The defacto complainant has every right to proceed on the private complaint and the learned Magistrate taken note of investigation conducted under Section 202 Cr.P.C.and also the statement of witnesses recorded. Therefore at this stage the quashment of the private complaint does not arise. Hence, opposed the prayer. 4. As rightly pointed out by the learned counsel for the Petitioners, prior to the private complaint pressing into the same allegations a complaint has been given to the Superintendent of Police and the very private complaint itself indicates that there was a direction by the Judicial Magistrate under Section 156(3) Cr.P.C.in Crl.M.P.No.1076 of 2021, directing the District Crime Branch to conduct preliminary enquiry and file a report. The report filed by the District Crime Branch shows that the entire transaction is civil transaction and the amount has been received by A7 on executing certain documents and the offence of cheating and other things have not been made out and directed the parties to pursue the remedy on the basis of the cheques and it is also stated that in respect of alleged threat, the parties were relegated to give a complaint to the jurisdictional police station. The above report has been filed before the Court, thereafter, the proceedings under Section 156(3) Cr.P.C.has been closed. Thereafter, private complaint has been filed including the jurisdictional police station. It is relevant to note that the private complaint has been directed under Section 202 Cr.P.C.for investigation. The investigating officer has filed a report stating that as if A7 appears to have paid amount to A1. Such finding has been arrived only on the basis of the so called statement of A7. On that report and also the further witnesses in the name of defacto complainant bank's officials who spoke about the return of the cheque, the private complaint has been taken on file. 5. Normally, while exercising the power under Section 482 Cr.P.C., the court will not conduct roving enquiry, going into the veracity of the allegations. On that report and also the further witnesses in the name of defacto complainant bank's officials who spoke about the return of the cheque, the private complaint has been taken on file. 5. Normally, while exercising the power under Section 482 Cr.P.C., the court will not conduct roving enquiry, going into the veracity of the allegations. At the same time when the entire private complaint does not make out any offence and the mere an abuse of process of law, the Court can interfere and prevent the suffering of the parties undergoing ordeal of the trial. The very crux of the allegations in the private complaint indicate that past 30 years A1 and defacto complainant are known to each other and the defacto complainant has advanced several financial assistance to A1, which has been repaid by him promptly. The allegations further indicate that on 04.10.2018 Rs.one crore has been received by A7 from the defacto complainant. Though it is stated that all the accused received money and thereafter paid to A7 the allegation that A7 is not known to the defacto complainant and he was introduced as first time at the time of receipt of money is improbable for the very reason that A1 and defacto complainant family are known to each other for more than 30 years and A7 is none other than A1's sister son. The admitted documents filed in the typed set are not disputed also indicate that only A7 has exectued the written undertaking for the receipt of the amount. Thereafter, it appears that he left five blank cheques for repayment of amount. However, now the amount has not repaid by A7, therefore the entire family members have been robed. 6. It is relevant to note that in order to attract the offence of cheating, the dishonest intention to be present from the inception. Admittedly A1 and others have money transaction with defacto complainant for more than 30 years, the amount received by A1 previously was also repaid. Therefore, to attract the offence of cheating there must be an averment to the effect that there was an inducement making the defacto complainant to believe that to repay any amount and thereby dishonestly induced the defacto complainant, in such a case the amount of cheating would be certainly attracted. Therefore, to attract the offence of cheating there must be an averment to the effect that there was an inducement making the defacto complainant to believe that to repay any amount and thereby dishonestly induced the defacto complainant, in such a case the amount of cheating would be certainly attracted. At the same time when there was an intention to repay the amount, subsequently, the amount could not be paid due to some other reasons, it is only amounts to breach of contract and cheating will not be attracted but such breach is liable to the civil action. A combined reading of Section 415 I.P.C. Particularly, illustrations (f) and (g) makes it clear that there must be intention to deceive the defacto complainant it should be present from the inception and he should have been made to believe that the accused had means to repay the money. Thereafter, he is not intended to repay it, then certainly Section 415 I.P.C.would be attracted. “Illustrations (f) and (g) to Section 415 I.P.C. “(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats. (g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.” Here, the allegation in entirety taken note it appears that it is only money transaction for long years and the amount has also been repaid by A1. Therefore, even assuming that the entire family members present and assured for repayment and subsequently the amount has not been paid by A7, mere assurance for repayment without intention to deceive, offence under Section 420 cannot be pressed into service. At the most it could be construed only subsequent breach of contract. The amount has been admittedly received by A7 and necessary cheques also issued towards the payment of said amount. At the most it could be construed only subsequent breach of contract. The amount has been admittedly received by A7 and necessary cheques also issued towards the payment of said amount. Therefore, family members who are known to each other even introducing other family member for financial assistance would not come within the ambit of cheating, since other member who have actually received the amount has not paid the amount. The allegation in entirety taken into note make it clear that the family members assurance would be taken only a surety. Admittedly if really the amount has been paid to A1 to A4 (petitioners herein) there was no need for the defacto complainant to receive the cheques and other documents from A7, which also cannot be ignored altogether. 7. It is also relevant to note that when the District Crime Branch has already filed report stating that it is a civil transaction, offence has not been made out. Now the different investigating officer filed a report as if A7 has given a statement to the effect that he has paid the amount. Admittedly A7 has made an accused. If any such statement cannot be made use of against A1 to A4. 8. Therefore, considering the manner in which the private complaint filed despite the fact that earlier complaint has been closed by District Crime Branch and obtaining a favourable report later, indicate that it is nothing but abuse of process of law. At any event, in order to attract the offence under Section 415 I.P.C.the ingredients of offence requires, (1) deception of any person; 2(a) fraudulently or dishonestly inducting that person; (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person, in body, mind, reputation or property. 9. Therefore, merely because the petitioner gave some assurances to the defacto complainant for repayment of amount paid to A7, their action cannot be brought under Section 420 I.P.C. With regard to the other allegations of threat and abusive words, except general allegations there is no specific allegations indicating specific instances are made. 9. Therefore, merely because the petitioner gave some assurances to the defacto complainant for repayment of amount paid to A7, their action cannot be brought under Section 420 I.P.C. With regard to the other allegations of threat and abusive words, except general allegations there is no specific allegations indicating specific instances are made. The threat must be a real to cause alarm to danger to the life of the person. Such allegations not found anywhere in the complaint or statement. Specific instances have not been found except the general allegations, therefore, the offencess under Section 294(b) and 506(1) I.P.C. are also not attracted. Therefore, mere presence of the family members at the time of advancing the amount the conspiracy could not be inferred. 10. Accordingly, the Criminal Original Petition is Ordered. The criminal proceedings against the Petitioners/A1 to A4 in C.C.No.5 of 2022 on the file of the learned Judicial Magistrate No.1, Thiruvannamalai is quashed. Consequently, connected Miscellaneous Petition is closed. The Trial Court shall proceed against the other accused as per law and dispose of the main C.C. within a period of six months from the date of receipt of copy of this Order.