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C.Kuppusamy vs I.Arokiya Doss on 9 April, 2019

1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.04.2019

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

CRL.O.P.No.7823 of 2014
and M.P.Nos. 1 to 3 of 2014

1. C.Kuppusamy
2. K.Nirmala
3. Kalaiselvi
4. Dr.Karthik
5. Prasad … Petitioners

Vs.

I.Arokiya Doss … Respondent

PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C. praying
to call for the records in C.C.No.17 of 2014 pending on the file of the learned
Judicial Magistrate No.II, Panruti Taluk, Cuddalore District and quash the
same.
For Petitioners : Mr.P.B.Sampath Kumar

For Respondent : Mr.M.S.Palaniswamy

ORDER

This petition has been filed to quash the proceedings in

C.C.No.17 of 2014 on the file of the learned Judicial Magistrate NO.II, Panruti

Taluk, Cuddalore District.

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2. The learned counsel appearing for the petitioners submitted that

the petitioners are arraigned as A1 to 5 in C.C.No.17 of 2014 on the file of

the learned Judicial Magistrate No.II, Panruti, having been taken cognizance

for the offences under Sections 406, 417 and 420 of IPC on the private

complaint filed by the respondent herein. According to the complainant, the

first petitioner intended to sell his property to the respondent to the price of

Rs.2,10,00,000/-. The respondent had paid a sum of Rs.5 lakhs to the first

petitioner in the presence of second petitioner and other family members as

advance and also executed the sale agreement. Thereafter the second

petitioner executed a sale agreement with the petitioners 3 to 5 herein, and

the first petitioner refused to execute the sale deed in favour of the

respondent and cheated him.

2.1. The learned counsel appearing for the petitioner further

submitted that the first petitioner and the respondent are very close friends

and the first petitioner received a sum of Rs.5 lakhs as a hand loan from the

respondent and not for the purpose of any sale of property. The second

petitioner is the original owner of the said property and she is in possession

and enjoyment of the property. Though the first petitioner is the husband of

the second petitioner and he has no title over the property. Even according to

the respondent, the second petitioner did not receive any amount from the
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respondent and she never assured and entrusted the respondent to sale the

property. In respect of the other petitioners are concerned, absolutely no role

played by them in the transactions, even as alleged by the prosecution.

2.2. Further more, the entire dispute is civil in nature and the

respondent has suppressed so many facts and filed the false complaint as

against the petitioners. In fact the respondent also issued legal notice to call

upon the petitioners to specific performance pursuant to the sale agreement

dated 15.11.2010. Thereafter the respondent also lodged a complaint before

the Inspector of Police, Kadampuliyur Police Station, Cuddalore and the same

was registered in Crime No.171 of 2012 for the offence under Section 420 of

IPC. After thorough investigation, the Inspector of Police found that the entire

complaint is false and closed the complaint as “Mistake of Facts” on

21.03.2013 itself. In fact, the respondent did not file any protest petition on

the closure report filed by the Police Officials. Without invoking the

provisions, the respondent simply filed this complaint and the learned

Magistrate without considering the above facts and circumstances have taken

cognizance for the offences under Sections 417 and 420 of IPC as against the

petitioners. Therefore, he prayed for quashment of the proceedings.

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3. Per contra, the learned counsel appearing for the respondent/

defacto complainant submitted that the first petitioner entered into sale

agreement with the respondent and received a sum of Rs.5 lakhs as advance.

The other petitioners are witnessed to the sale agreement and they also

ensured the execution of sale deed in his favour. Thereafter the respondent

came to understand that the first petitioner is not the owner of the said

property and the second petitioner is the original owner of the property.

Thereafter, the second petitioner entered into the sale agreement with other

petitioners 3 to 5. Therefore the petitioners cheated the respondent and the

offences under Sections 417 and 420 of IPC are attracted as against them.

Hence, he prayed for dismissal of the quash petition.

4. Heard Mr.P.B.Sampathkumar, learned counsel appearing for the

petitioners, Mr.M.S.Palaniswamy, learned counsel appearing for the

respondent.

5. The petitioners are arraigned as A1 to A5 in the private

complaint filed by the respondent. The learned Magistrate have taken

cognizance for the offences under Sections 406, 470, 420 of IPC in C.C.No.17

of 2014, on the allegations that the first petitioner received a sum of Rs.5

lakhs as advance to sell his property and executed the sale agreement in
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favour of the respondent herein. Thereafter, the respondent came to

understand that the property in question is not belong to the first petitioner

and it belongs to the second petitioner. The second petitioner is none other

than the wife of the first petitioner and she executed the sale agreement in

favour of the other petitioners in respect of the very same property. Hence

the complaint.

6. On perusal of the complaint and documents, it is seen that the

first and second petitioners are husband and wife and the property in

question is owned by the second respondent. It is also seen that the first

petitioner issued receipt for the sum of Rs. 5 lakhs to sell the property

situated at 135/1, Panikkankuppam, Panruti Taluk, Coimbatore District in

favour of the respondent. It is also seen that the respondent issued notice to

the first respondent on 28.05.2011 call upon him to execute the sale deed.

On receipt of the same the first petitioner caused reply notice stating that he

borrowed a sum of Rs.5 lakhs as hand loan from his close friend and he

never intend to sell the property to the respondent herein. After receipt of the

reply notice again the respondent cased notice to the first and second

petitioners herein on 09.07.2011. The said notice was also replied by reply

notice dated 25.07.2011.

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7. It is also seen that on 07.09.2011, the second petitioner

executed sale deed in favour of the petitioners 3 to 5, for the total sale

consideration of Rs.40,87,000/-, in respect of the property comprised in

185/1, old No. 243/1, Panikkankuppam, Panruti Taluk, Coimbatore District, ad

measuring 1.41 acres. Whereas it is seen from the receipt issued by the first

petitioner in respect of the property namely situated at 135/1,

Panikkankuppam, Panruti Taluk, Coimbatore District ad measuring 600’X150′,

that too for the sale consideration of Rs.2,10,00,000/-. That apart, the

respondent also filed suit in O.S.No.98 of 2014 on the file of the Sub Court,

Cuddalore for specific performance as against the petitioners. He also filed

private complaint as against the petitioners on the very same set of

allegations, though there is a civil dispute between the first petitioner and the

respondent. Even according to the complaint, there is no transactions

between the other petitioners and the respondent.

8. In this regard, the learned counsel appearing for the petitioners

relied upon the judgment reported in (2000) 3 SCC 269 in the case of

Medchl Chemicals Pharma (P) Ltd. Vs. Biological E Ltd and others,

as follows :-

“11. While Section 415 is an offence of
cheating, Section 418 deals with cheating with

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knowledge that wrongful loss may ensue to a
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person whose interest the offender is bound to
protect and Section 420 is cheating and
dishonestly inducing delivery of property. In order
to attract the provisions of Sections 418 and 420
the guilty intent, at the time of making the
promise is a requirement and an essential
ingredient thereto and subsequent failure to fulfil
the promise by itself would not attract the
provisions of Section 418 or 420. Mens rea is one
of the essential ingredients of the offence of
cheating under Section 420. As a matter of fact
illustration (g) to Section 415 makes the position
clear enough to indicate that mere failure to
deliver in breach of an agreement would not
amount to cheating but is liable only to a civil
action for breach of contract and it is this concept
which obviously has weighed with the Learned
Single Judge. But can the factual situation as
narrated above in the longish reproduction of the
complaint lend support to the observations of the
Learned Judge, the answer is pivotal one but
before so doing one other aspect as regards the
powers under Section 482 Cr.P.C. ought to be
noticed. As noted herein before this power is to
be exercised with care and caution and rather
sparingly and has been so held on more
occasions than one.

………….

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15. In the matter under consideration, if
we try to analyse the guidelines as specified in
Shivalingappas case (supra) can it be said that
the allegations in the complaint do not make out
any case against the accused nor it discloses the
ingredients of an offence alleged against the
accused or the allegations are patently absurd
and inherently improbable so that no prudent
person can ever reach to such a conclusion that
there is sufficient ground for proceeding against
the accused. In the present case, the complaint
as noticed above does not, however, lend
credence to the questions posed. It is now well
settled and one need not dilate on this score,
neither we intend to do so presently that the
allegations in the complaint will have to be
accepted on the face of it and truth or falsity of
which would not be gone into by the Court at this
earliest stage as noticed above: whether or not
allegations in the complaint were true is to be
decided on the basis of the evidence led at the
trial and the observations on this score in the
case of Nagpur Steel Alloys Pvt. Ltd. v. P.
Radhakrishna [1997 SCC (Crl.) 1073] ought to be
noticed. In paragraph 3 of the report this Court
observed:

3. We have perused the complaint
carefully. In our opinion it cannot be said that the
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complaint did not disclose the commission of an
offence. Merely because the offence was
committed during the course of a commercial
transaction, would not be sufficient to hold that
the complaint did not warrant a trial. Whether or
not the allegations in the complaint were true
was to be decided on the basis of evidence to be
led at the trial in the complaint case. It certainly
was not a case in which the criminal trial should
have been cut short. The quashing of the
complaint has resulted in grave miscarriage of
justice. We, therefore, without expressing any
opinion on the merits of the case, allow this
appeal and set aside the impugned order of the
High Court and restore the complaint. The
learned trial Magistrate shall proceed with the
complaint and dispose of it in accordance with
law expeditiously.”

9. He also relied upon the judgment reported in (2002) 1 SCC

241 in the case of S.W.Palanitkar and others Vs.State of Bihar and

another, which reads as follows :-

“20. Turning to the facts of the case, there
is nothing either in the complaint and/or in the
sworn statements of the complainant and the
three witnesses that any property was entrusted
to any of the appellants at all or the appellants
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had domain over any of the properties of
respondent no. 2 which they dishonestly
converted to their own use so as to satisfy the
ingredients of Section 405 IPC punishable under
Section 406 IPC. Further the agreement also did
not require entrustment of any property to the
appellants. Taking the complaint and the
statements of the witnesses as they are, it cannot
be said even prima facie, that the appellants
committed any offence punishable under Section
406 IPC, since the ingredients of that offence
were not satisfied. Hence the learned Magistrate
committed a serious error in issuing process
against the appellants for the said offence.
Unfortunately, the High Court also failed to
correct this manifest error.

21. It is clear from the allegations made in
the complaint and the sworn statements that the
appellant no. 1 company entered into an
agreement with the respondent no. 2 on certain
terms and conditions. It is alleged that the
appellant no. 7 went to Patna and contracted
respondent no. 2 and induced him to enter into
an agreement assuring him of huge profit. At the
time of arriving at such an agreement, none of
the other appellants either met the respondent
no. 2 or induced him to enter into any agreement
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with a view to cheat him. The agreement was
further renewed for a period of one year. It is not
the case that there was no supply of goods at all
as it has come on record that there was supply of
400 ton of fertilizer, may be it was far less than
the required quantity. The allegations made
against the appellants other than the appellant
no. 7 are very vague and bald. From the material
that was placed before the Magistrate, even
prima facie, it cannot be said that there was
conspiracy or connivance between the other
appellants and the appellant No. 7. If the
appellants have committed breach of agreement,
it is open to respondent no. 2 to seek redressal in
a competent court or forum to recover damages,
if permissible in law in case he had sustained any
loss. In order to constitute an offence of
cheating, the intention to deceive should be in
existence at the time when the inducement was
made. It is necessary to show that a person had
fraudulent or dishonest intention at the time of
making the promise, to say that he committed an
act of cheating. A mere failure to keep up
promise subsequently cannot be pre-sumed as an
act leading to cheating.”

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10. In the case on hands to attract the offences under Sections 406,

417, 420 of IPC, there is absolutely no ingredients to make out a case for the

said offences as against the petitioners. Admittedly, there is a civil dispute, in

which the respondent initiated suit for specific performance as against the

petitioners. Therefore, the judgement passed by the Hon’ble Supreme Court

of India is squarely applicable to the case on hand. The impugned

proceedings is nothing but clear abuse of process of Court and it cannot be

sustained as against the petitioners.

11. Accordingly, this Criminal Original Petition stands allowed and the

proceedings C.C.No.17 of 2014 on the file of the learned Judicial Magistrate

No.II, Panruti Taluk, Cuddalore, is hereby quashed, insofar as the petitioners

are concerned. Consequently connected miscellaneous petitions are closed.

09.04.2019
Internet:Yes/No
Index :Yes/No
Speaking/Non speaking order
rts

To

The Judicial Magistrate Court No.II,
Panruti Taluk, Cuddalore District
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13

G.K.ILANTHIRAIYAN, J.

rts

CRL.O.P.No.7823 of 2014
and M.P.Nos. 1 to 3 of 2014

09.04.2019

http://www.judis.nic.in

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