The High Court dismissed a petition to quash criminal proceedings alleging cheating and breach of trust, holding that the allegations took cognizance of specific offences beyond mere civil disputes, and quashing was barred judicial precedents.
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Crl.O.P.No.15385 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2023
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.15385 of 2021 and
CRL.M.P.Nos.8421 and 8423 of 2021
Sheik Abdul Kadher ... Petitioner
Vs
2.S.Srinivasan ... Respondents
Prayer : Criminal Original Petition is filed under Section 482 of Criminal Procedure Code, to call for the records relating to the criminal case in C.C.No.1772 of 2019 on the file of the Learned Judicial Magistrate No.VII, Coimbatore and quash the same.
For Petitioner : Mr.N.Manokaran For R1 : Mr.A.Gopinath Government Advocate (Crl Side) For R2 : Mr.V.Jeyachandran
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ORDER
This Criminal Original Petition has been filed to quash the proceedings in C.C.No.1772 of 2019 on the file of the Judicial Magistrate No.VII, Coimbatore.
had supplied cotton, on commission basis. The said cotton was procured from various persons. He supplied cotton to the tune of Rs.4,32,49,570/between the period 09.04.2015 and 10.07.2015. So far, the accused had repaid a sum of Rs.2,39,01,903/- and the balance of Rs.1,93,47,607/- is due. When the defacto complainant demanded the amount from the accused, he has informed that he is in dire need of money to purchase Kangotri Mills and that after purchasing the mill, he will return the entire amount. Further, he had stated that he was in need of money to the tune of Rs.1,17,00,000/- to purchase the said mill. Believing the said words, the second respondent arranged money from the cotton suppliers and paid money to the tune of Rs.1,17,00,000/- to the accused. However, the accused did not purchase any mill and also cheated the entire amount payable by him to the complainant. Hence, the complaint.
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submit that the petitioner is a sole accused. There are averments to attract the offence of cheating viz., Section 415 of IPC. Admittedly, there was business transaction between the petitioner and the second respondent. There was absolutely no intention for the petitioner to induce the second respondent to supply material without paying any money. He had no intention to cheat the defacto complainant. Even according to the defacto complainant, he supplied cotton to the tune of Rs.4,32,49,570/-. The petitioner had repaid a sum of Rs.2,39,01,903/-. There was balance. Therefore, it is only a business transaction and no offence is attracted for the offences under Sections 406 and 420 of IPC. When the defacto complainant demanded the balance amount on 15.12.2015, the petitioner threatened the defacto complainant with dire consequences and also failed to keep up his words. However, the 3/11
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complaint was lodged only in the year 2018. There is no proper explanation for lodging a complaint belatedly. Since, the entire allegations are civil in nature and to file a suit for recovery of money the time expired and as such, the second respondent lodged a complaint with false allegations. It is nothing but an attempt to collect the amount, through a criminal complaint.
SCC 706 in the case of Anand Kumar Mohatta and another Vs. State 4/11
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(NCT of Delhi), Department of Home and another, in which the Hon'ble Supreme Court of India held that the dispute has the contours of a dispute of civil nature and does not constitute a criminal offence.
petitioner purchased cotton from the second respondent. Though the second respondent got a mediator, he only placed the orders before the various persons to supply cotton and he acted as a commission agent. The petitioner had purchased the cotton to the tune of Rs.4,32,49,570/from 09.04.2015 to 10.07.2015 So far, he repaid a sum of Rs.2,39,01,903/-. At that juncture, the petitioner approached the defacto complainant to arrange further loan of Rs.1,17,00,000/- to purchase Kangotri Mill. It was stated that after purchase of the said mill, after running the mill, he will be returning the entire amount. Believing the said word and also in order to get the balance amount, the defacto complainant arranged a loan from LW4.
second respondent, he had lent a sum of Rs.1,17,00,000/- to the petitioner herein. Two witnesses were there, while lending the said https://www.mhc.tn.gov.in/judis 5/11
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amount. They were also examined and they categorically stated that in order to pay a sum of Rs.1,17,00,000/-, the said LW4 had lent money. After receiving a sum of Rs.1,17,00,000/-, the petitioner had spent the entire amount lavisely and was also involved in Iridiyam business.
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the Hon'ble Supreme Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of Devendra Prasad Singh Vs. State of Bihar & Anr., which reads as follows:-
" 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.
13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.
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11. Recently, the Hon'ble Supreme Court of India
dealing in respect of the very same issue in Crl.A.No.1572 of 2019 dated
17.10.2019 in the case of Central Bureau of Invstigation Vs. Arvind
Khanna, wherein, it has been held as follows:
“19. After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.
20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.”
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12. Further the Hon'ble Supreme Court of India also held
in the order dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of
M.Jayanthi Vs. K.R.Meenakshi & anr, as follows:
"9. It is too late in the day to seek reference to any authority for the p roposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged.
13. A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage...................."
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The above judgments are squarely applicable to this case and as such, the
points raised by the petitioner cannot be considered by this Court under
Section 482 Cr.P.C.
17.10.2023
Lpp Index:Yes/No Internet:Yes/No
To
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G.K.ILANTHIRAIYAN,J.
Lpp
CRL.O.P.No.15385 of 2021 &
CRL.M.P.Nos.8421 and 8423 of 2021
17.10.2023
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2 issues framed by the court
Whether a criminal proceeding based on an allegation of cheating and breach of trust arising from a commercial transaction can be quashed under inherent powers.
Whether the High Court exceeded its jurisdiction under Section 482 Cr.P.C. by recording findings on disputed facts instead of examining whether prima facie case exists.
Colour shows how this judgement treated each authority
Thermax Limited and others Vs. K.M.Johny and othersDistinguished¶30
(2011) 13 SCC 412 · Who else cites this
Anand Kumar Mohatta and another Vs. State (NCT of Delhi), Department of Home and anotherDistinguished¶35
(2019) 11 SCC 706 · Who else cites this
Devendra Prasad Singh Vs. State of Bihar & Anr.Applied¶47
Crl.A.No.579 of 2019
Central Bureau of Invstigation Vs. Arvind KhannaApplied¶56
Crl.A.No.1572 of 2019
M.Jayanthi Vs. K.R.Meenakshi & anrApplied¶64
Crl.A.No.1817 of 2019
4 provisions across 2 enactments
Sheik Abdul Kadher
State represented by The Inspector of Police, CCB, Coimbatore City
S.Srinivasan
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
