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Subaitha Beevi @ Subaitha vs The State Represenated By on 9 January, 2020

Crl.O.P.(MD).No.14266 of 2015

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 09.01.2020
CORAM:
THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR
Crl.O.P.(MD).No.14266 of 2015
and
M.P.(MD).Nos.1 2 of 2015

Subaitha Beevi @ Subaitha …Petitioner / Accused No.1
Vs.

1. The State represenated by
The Inspector of Police,
District Crime Branch,
Nagercoil, Kanyakumari District. …Respondent / Complainant

2. Babu Hussian …Respondent / De facto Complainant

PRAYER: Criminal Original Petition filed under Section 482 of the
Criminal Procedure Code, to call for the records relating to the proceedings in
C.C.No.174 of 2014, on the file of the Judicial Magistrate No.I, Nagercoil and
quash the same insofar as the petitioner is concerned.

For Petitioner : Mr.T.Antony Arul Raj
For R-1 : Mr.K.Suyambulinga Bharathi
Government Advocate (Criminal side)
For R-2 : Mr.S.Palanivelayutham

ORDER

This Criminal Original Petition has been filed to quash the

proceedings against the petitioner in C.C.No.174 of 2014, before the learned

Judicial Magistrate No.I, Nagercoil.

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Crl.O.P.(MD).No.14266 of 2015

2. The petitioner herein is arrayed as Accused No.1 in C.C.No.174 of

2014, for the offences under Sections 120 (b), 406, 420 and 506 (i) I.P.C.

The petitioner along with two other persons viz., Valarmathi and Kumar, the

agents of the petitioner / Accused No.1 are arrayed as Accused Nos.2 and 3.

3. The case of the prosecution is that the Accused Nos.1 and 2

belong to Thituvillai, Kanyakumari District and Accused No.3 belongs to

Nagercoil, Kanyakumari District. The Accused Nos.1 to 3 are known to each

other and Accused Nos.2 and 3 are agents of Accused No.1. The second

respondent / de facto complainant is running a Jewellery shop in the name and

style of Shaba Jewellery at Meenakshipuram, Nagercoil. During the period

from 17.10.2011 to 01.11.2011, series of transactions have taken place and

the jewelleries were handed over to the accused. Some spot payments were

made, some without payment and thereafter, to the tune of Rs.2,98,66,834/-

have been misappropriated by the accused and thereby, cheated the de facto

complainant. When the second respondent / de facto complainant made a

request for repayment of the amount, the accused threatened them with dire

consequences. Hence, a case came to be registered before the first

respondent Police and on completion of investigation, a charge sheet came to

be filed. The petitioner has filed this petition to quash the proceedings in

C.C.No.174 of 2014, initiated against her.

4. The contention of the petitioner is that earlier to this complaint,

the second respondent / de facto complainant had lodged a complaint before
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Crl.O.P.(MD).No.14266 of 2015

the Inspector of Police, Kottar Police Station and after conducting enquiry, it

came to be closed on 16.12.2011. Thereafter, a second complaint was given

to the Superintendent of Police, Kanyakumari District and the same was

forwarded to the Inspector of Police, Nesamani Nagar Police Station, Nagercoil

and it was also closed on 18.03.2012. Again, a third complaint was given to

the Kottar Police Station and the same came to be closed on 25.03.2012. The

present complaint / fourth complaint was given to the Kottar Police Station.

Since huge amounts were involved in the present complaint, it was forwarded

to the District Crime Branch and the Inspector of Police registered a case in

Crime No.28 of 2012 on 14.05.2012. He would submit that in the fourth

complaint, there is no mention about the earlier complaints lodged and closed.

He would submit that in this case, it is an admitted case of the second

respondent / de facto complainant that over a period, the sale of jewellery had

been taken place between the second respondent / de facto complainant and

the accused. Hence, after the sale, it cannot be said that, it is the case of

misappropriation. He would further submit that there have been series of

business transactions and they had been carrying on the business and as such,

in this case, the offence of cheating would not attract. The affidavit now being

produced by the prosecution in this case has not been mentioned in the earlier

three complaints and the case of the second respondent / de facto complainant

is that the sale consideration has not been paid and the Police could not be

used as a collecting agent for recovery of the balance sale consideration. He

would further submit that the petitioner had not given any undertaking and
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Crl.O.P.(MD).No.14266 of 2015

hence, no criminal complaint, in view of no entrustment, under Section 406

I.P.C., would not attract and in view of the admitted case of the de facto

complainant, it is series of transactions and due to failure of collection of

subsequent amounts, the cheating would not get attracted. Hence, he prays

before this Court to quash the criminal proceedings initiated against the

petitioner herein.

5. The learned counsel appearing for the petitioner in order to

substantiate his submissions relied upon the judgment of the Hon’ble Supreme

Court in the case of Vesa Holdings Private Limited and another Vs. State

of Kerala and others reported in (2015) 8 SCC 293. The relevant portion

of the judgement is extracted hereunder:

“8. From the decisions cited by the appellant, the settled
proposition of law is that every breach of contract would not give
rise to an offence of cheating and only in those cases breach of
contract would amount to cheating where there was any
deception played at the very inception. If the intention to cheat
has developed later on, the same cannot amount to cheating. In
other words for the purpose of constituting an offence of
cheating, the complainant is required to show that the accused
had fraudulent or dishonest intention at the time of making
promise or representation. Even in a case where allegations are
made in regard to failure on the part of the accused to keep his
promise, in the absence of a culpable intention at the time of
making initial promise being absent, no offence under Section
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Crl.O.P.(MD).No.14266 of 2015

420 of the Indian Penal Code, 1860 can be said to have been
made out.”

5.(1). He would further rely upon the judgment of the Hon’ble

Supreme court in the case of State of Gujarat Vs. Jaswantlal Nathalal

reported in AIR 1968 Supreme Court 700 (V 55 C 140). The relevant

portion of the judgment is extracted hereunder:

“8.The term “entrusted” found in Section 405 I.P.C.
governs not only the words “with the property” immediately
following it but also the words “or with any dominion over the
property” occurring thereafter-see Velji Raghavji Patel Vs.
State of Maharastra, 1964-2 SCR 429 (AIR 1965 SC 1433).
Before there can be any entrustment there must be a trust
meaning thereby an obligation annexed to the ownership of
property and a confidence reposed in and accepted by the
owner or declared and accepted by him for the benefit of
another or of another and the owner. But that does not mean
that such an entrustment need conform to all the technicalities
of the law of trustee Jaswantrai Manilal Vs. State of Bombay,
1956 SCR 483 at PP. 498-500 (AIR 1956 SC 575 at pp.
582-583). The expression ‘entrustment’ carries with it the
implication that the person handing over any property or on
whose behalf that properly is handed over to another,
continues to be its owner. Further the person handing over the
property must have confidence in the person taking the
property so as to create a fiduciary relationship between them.
A mere transaction of sale cannot amount to an entrustment.

It is true that the Government had sold the cement in question
to BSS solely for the purpose of being used in connection with
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Crl.O.P.(MD).No.14266 of 2015

the construction work referred to earlier. But that
circumstance does not make the transaction in question
anything other than a sale. After delivery of the cement, the
government had neither any right nor dominion over it. If the
purchaser or his representative had failed to comply with the
requirements of any law relating to cement control, he should
have been prosecuted for the same. But we are unable to hold
that there was any breach of trust.”

5.(2). He placed reliance of the judgment of this Court in the case of

Rakesh P.Sheth and others Vs. State represenated by the Inspector of

Police, CCB, Vepery, Chennai-600 007 and other reported in 2018 (1)

MWN (Cr.) 147. The relevant portion of the judgment is extracted

hereunder:

“24.In the light of the aforesaid Judgments, it can only be
held that whenever there are sufficient materials to indicate that a
complaint manifestly discloses a civil dispute, the inherent powers of
this Court under Section 482 Cr.P.C., can be invoked. Likewise, when
the complaint prima facie discloses that the transaction is for
recovery of money due on a commercial transaction, the police
cannot be transformed into a collection agent by spicing a criminal
colour to the complaint.”

5.(3). He placed reliance of the order of this Court in the case of

Kironkumar Lulla and others Vs. State represented by the Inspector of

Police, E.O.W. II, Chennai-2 and others in Crl.O.P.No.10765 of 2004.

The relevant portion of the order is extracted hereunder:

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Crl.O.P.(MD).No.14266 of 2015

“16. The aforesaid statements of L.W.1 and L.W.2
reveal that during the course of the commercial transaction
between the petitioners and the de facto complainant, the de
facto complainant had supplied fabrics and the petitioners were
making certain payments and ultimately a huge amount was
due from the petitioners to the de facto complainant. Whether
the above said failure on the part of the petitioners to pay the
amounts towards the purchases of fabrics in the course of
commercial transaction will amount to cheating or criminal
breach of trust has to be considered in the light of the law laid
down by the Apex Court in the various decisions relied upon by
the learned counsel for the petitioners.”

6. The learned counsel appearing for the second respondent / de

facto complainant would submit that the probability or improbability of the

case, which is on factual aspect, has to be established only during the trial. In

this complaint, it has been clearly mentioned about the entrustment of jewels

to the petitioner and also the corresponding bills which have been given for the

jewels are produced. Though it is a business transaction, the petitioner after

getting the jewels, had sold the jewels, received the money and thereafter,

converted the same to her own use and by not paying any amount to the de

facto complainant, would clearly show that this is a case of misappropriation.

Further to gain the confidence of the second respondent / de facto

complainant, payments were made regularly and thereafter, lured the second

respondent to entrust further jewels to the petitioner and thereby, the

petitioner had converted the same for her own use, misappropriated and
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Crl.O.P.(MD).No.14266 of 2015

cheated the second respondent / de facto complainant. The petitioner had

given an undertaking by way of an affidavit, further, she signed in the receipts

acknowledging receipt of jewels. The petitioner has admitted her signatures as

could be seen from page No.4 of the petition, wherein, it is alleged that the

second respondent / de facto complainant had forcibly obtained the signatures

in vouchers, blank papers and blank stamp papers from the petitioner, for

which, she had lodged a complaint before the Bhoothapandi Police Station,

Kanyakumari District and a case in Crime No.11 of 2014, came to be

registered for an offence under Section 420 I.P.C., which is still pending

investigation. Further, submitted that there is only a thin line of difference

between the civil transaction and the criminal transaction. The conduct of the

petitioner on the manner in which the petitioner gives an explanation for the

signatures found in the affidavit clearly proves the culpability and the criminal

intention of the petitioner. He would further submit that a complaint has been

lodged only for cheating and for misappropriation committed by the petitioner,

complaint is not for recovery. The first respondent Police registered the

complaint, conducted investigation, collected documents, sent the documents

for forensic study and filed a charge sheet against the petitioner and other

accused. The points raised by the petitioner are to be decided only during the

trial and hence, he sought for dismissal of the petition.

7. The learned Government Advocate (Criminal side) appearing for

the first respondent submitted that on receipt of complaint from the second

respondent / de facto complainant, a case came to be registered and on
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Crl.O.P.(MD).No.14266 of 2015

completion of investigation, L.W.1 to L.W.16 have been examined, cited and

several documents have been listed along with the charge sheet. Some of the

documents have been sent for Forensic Department as well as the Handwriting

Expert opinion, the Fingerprint Expert report has been obtained in this case.

He would further submit that in this case L.W.1 is the de facto complainant.

L.W.2 and L.W.3 are the salesman, who handed over the jewels to the

petitioner, L.W.7 is the witness for the threat given by the petitioner. L.W.8 is

the witness to the documents. L.W.9 is the Document Writer. L.W.10 has

spoken about the execution of documents. L.W.11 is the Notary Public

Advocate has spoken about the signatures found in the documents. L.W.12 is

the Officer attached to the Forensic Department. L.W.13 is the Fingerprint

Expert He would further submit that the petitioner along with accused Nos.2

and 3, who are the agents of the petitioner had committed the offence and

some of the witnesses have given 164 statement against the petitioner. The

registration of Crime No.11 of 2014 is only an after thought and the crime

committed is of the year 2011 and the complaint lodged by the petitioner is in

the year 2014. Thus, after a detailed enquiry, a charge sheet came to be filed.

He would further submit that the points raised by the learned counsel

appearing for the petitioner are disputed points and it has to be decided only

during the trial. He further submitted that the next hearing date before the

trial Court is 13.01.2020 and due to the pendency of this Criminal Original

Petition, the trial could not be proceeded. Hence, he prays this Court to

dismiss this petition.

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Crl.O.P.(MD).No.14266 of 2015

8. This Court has carefully considered the submissions made on

either side and the entire oral and documentary evidence.

9. Considering the rival submissions made on either side and on

perusal of the materials, it is seen that the points raised by the petitioner

which are factual in nature and it has to be decided only during the trial. The

petitioner admits his signatures and disputes the contents of the documents.

Further, there are forensic and scientific evidence confirming to the case of the

prosecution. It is seen that there are enough materials to proceed against the

petitioner. The petitioner’s contention is that the offence under Sections 406

and 420 I.P.C., would not get attracted, cannot be countenanced on the facts

and circumstances of the case. Hence, this Court is not inclined to quash this

petition.

10. In the result, the Criminal Original Petition stands dismissed.

Consequently, connected miscellaneous petitions are closed.

09.01.2020
Index : Yes / No
Internet : Yes / No
tsg

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Crl.O.P.(MD).No.14266 of 2015

To
1. The Judicial Magistrate No.I,
Nagercoil.

2. The Inspector of Police,
Vigilance and Anti Corruption,
Madurai.

3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.

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Crl.O.P.(MD).No.14266 of 2015

M.NIRMAL KUMAR, J.

tsg

Crl.O.P.(MD).No.14266 of 2015

09.01.2020

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