Madras High Court
Mr. Medekar Intisar Mohamed vs The State on 7 June, 2021
Crl.O.P.No.29244 of 2017 and Crl.M.P.No.16531 of 2017
THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
22~11~2021 29-11~2021
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl.O.P.No.29244 of 2017
and Crl.M.P.No.16531 of 2017
1.Mr. Medekar Intisar Mohamed
2.Mrs.Sabah Shirazi .. Petitioners/Accused 1&2
.Vs.
1.The State
Inspector of Police,
F2 Egmore Police Station
Egmore, Chennai 600008. ... 1st Respondent/Respondent
2.Suresh Gupta ... 2nd Respondent/Defacto Complainant
Prayer: Petition filed under Section 482 of Cr.P.C.to call for the records in FIR
No.1656 of 2017 on the file of F2 Egmore Police Station, Chennai and quash the
same.
For Petitioner : Mr. P.V. Balasubramanian for
M/s. BFS Legal
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For Respondents : Mr. S. Vinothkumar
Government Advocate [for R1]
Mr.B. Mohan [for R2]
ORDER
The above petition has been filed to quash the F.I.R No.1656 of 2017 on the
file of F2 Egmore Police Station, Chennai, for the offences under Sections 406
and 420 of IPC.
2. The main contention of the learned counsel for the Petitioner is that in a
commercial transaction, given a colour of criminal case, unnecessarily the
husband and wife have been implicated without even the company being made an
accused. The learned counsel further submitted that there were transaction
between the parties for many years in respect of supply of leather products. Only
when there is some default in payment at later point of time due to the loss in the
company both the husband and wife have brought into the criminal case. Hence,
the contention of the learned counsel appearing for the petitioner is that absolutely
there is no intention whatsoever to deceive the 2nd Respondent/defacto
complainant. Therefore, mere default committed on later part cannot constitute
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the offence under Section 420 I.P.C. Learned counsel further submitted that there
is no fraudulent or dishonest intention on the part of the Accused. Therefore, in
the absence of any culpable intention on the part of the accused keep their
promise, the offence under Section 420 I.P.C.cannot be pressed into service.
Therefore, mere breach of contract would not give rise to an offence of cheating,
unless deception played by the accused was present from the very inception.
3. Learned counsel for the Petitioners furhter submitted that FIR itself
registered after obtaining the direction from this Court. Though the cheques were
dishonoured the defacto complainant not initiated any action under Section 138 of
the Negotiable Instruments Act, that itself clearly indicate that there is only a
breach of contract and there was no deception played by the accused. Whereas
wife has also implicated in order to coerce the payment from the husband and the
company has not made an accused. Therefore, the entire lodging of the FIR is not
valid and cannot be proceeded in the absence of any intention on the part of the
accused.
4. In support of his submissions, he relied upon the following judgments:
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Crl.O.P.No.29244 of 2017 and Crl.M.P.No.16531 of 2017
1. Alpic Finance Ltd., Vs. P.Sadasivan and another
[(2001) 3 SCC 513]
2. Inder Mohan Goswami & Ors vs. State of
Uttaranchal and Ors. [(2007) 12 SCC 1]
3. Paramjeet Batra vs. State of Uttarkand and Ors
[(2013) 11 SCC 673]
4. International Advanced Research Centre for
Powder Metallurgy and New Materials and Ors. vs.
Nimra Cerglass Technics Pvt. Ltd., [(2016) 1 SCC
348]
5. Ramesh Dahyalal Shah vs. State of Maharashtra
and ors. [2017 SCC Online Bom 9322]
6. Rakesh P. Sheth & Ors. vs. State & Ors. [2018 (1)
MLJ (Crl.) 215]
7. Singanamala Ramesh Babu vs. State and Ors
[MANU/TN/5724/2020]
8. Duraisamy & another vs. The Inspector of Police
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Crl.O.P.No.29244 of 2017 and Crl.M.P.No.16531 of 2017
DCB, Cuddalore [Crl.O.P.No.1128 of 2016 High
Court Madras dated 07.06.2021]
9. S.M.S.Pharmaceuticals Ltd., vs. Neeta Bhalla and
Ors. [AIR 2005 SC 3512]
10.Sabitha Ramamurthy and Ors. vs.
R.B.S.Channabasavaradhaya [Crl.A.No.950 of
2006 Supreme Court of India dated 13.09.2006]
11.S.K.Alagh vs. State of U.P. And Ors. [AIR 2008 SC
1731]
12.Sharad Kumar Sanghi vs. Sangita Rane [(2015) 12
SCC 781]
13.S.K.Shukla vs. State of M.P.
[MANU/MP/0272/2018]
14.I.Hemant Kumar Das and other vs. The State of
Bihar [Criminal Miscellaneous No.905 of 2018
Patna High Court dated 21.08.2018]
15.Kashish Gupta and Ors. vs. City Public Prosecutor
[MANU/TN/0659/2020]
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16.K. Suresh vs. State and Ors. [2012(2) MLJ (Crl)
22]
5. Learned counsel appearing for the 2nd Respondent/Defacto Complainant
mainly contended that only on the false representation made by the Petitioners
herein the goods were supplied and though the earlier cheques were dishonoured,
thereafter there was a representation once again, and again they issued cheques
which were also dishonoured. Hence it is his contention that general proposition
that the dispute in civil nature cannot be converted into a criminal case is not
applicable to the present case and the very complaint itself clearly indicate the
nature of representation and deception played by the Petitioners from the
inception. Therefore, at this stage, whether or not there was deception from the
inception cannot be seen, the same can be seen only in the evidence. Therefore, it
is his contention that only the husband and wife made false representation from
the beginning and the allegations in the FIR clearly substantiated the same. Such
being the matter the FIR cannot be quashed at this stage.
6. In support of his contention, he relied upon the following judgments:
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1. Vijayander Kumar and Ors. vs. State of
Rajasthan and Ors. [(2014) 3 SCC 389]
2. Sangeetaben Mahendrabhai Patel vs. State of
Gujarat and Ors. [(2012) 7 SCC 621.
3. Lakshman vs. The State of Karnataka and Ors.
[(2019) 9 SCC 677]
4. Rajesh Bajaj vs. State NCT of Delhi and Ors.
[(1999) 3 SCC 259]
7. FIR has been registered on the basis of the report given by the Defacto
Complainant and it is specifically stated that the Defacto Complainant supplied
materials only on the promise and assurance given by the Accused. Defacto
Complainant has not interested to supply the goods in view of irregular payment
by the accused made to believe that payment would be made and three cheques
were issued, thereafter, other six cheques were issued by the first Accused. All the
cheques were dishonoured. Therefore, FIR has been filed under Section 406 and
420 IPC.
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8. It is the contention of the learned counsel for the Petitioner that there was
no deception on the part of the 2nd Accused. She has been implicated in the FIR
only in order to get the money. It is to be noted that when the prima facie
allegations found in the FIR, initial stage, the Court normally would be slow in
quashing the FIR. Though it is stated that there is no deception made by the 2nd
accused, the allegation in the FIR indicates that the payments were assured and
cheeques were issued and even after dishonour of the previous cheques, thereafter
fresh cheques were issued, that also dishonoured.
9. It is the contention of the learned counsel for the Respondent that
whether the deception was present from the inception or deception was at later is
the matter of evidence. However, the prima facie allegations in the FIR indicates
that the deception from the very inception can be very easily inferred from various
allegations and conduct of the parties by issuing of cheques and dishonour of
cheques etc., Hence, it is his contention that merely because the case is of the
commercial nature, same cannot be quashed.
10. It is to be noted that the power under Section 482 Cr.P.C.has to be
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exercised very sparingly. In Alpic Finance case (supra) the Honourable Apex
Court has held that when the complaint does not disclose element of deception or
fraud, the complaint can be quashed. In the same judgment the Apex Court has
held that merely because the remedy by way of Civil suit is available, is not an
impediment in maintaining a criminal complaint provided the complaint discloses
the ingredients of the offences alleged.
11. In Inder Mohan Goswami's case (supra) the Honourable Supreme
Court has held that when the dispute purely of civil nature the initiation of the
criminal proceedings is abuse of process of law.
12. In Paramjeet Batra's case (supra) also the Honourable Apex Court has
held that when the dispute is of the civil nature the Court should not hesitate to
quash the criminal proceedings, otherwise it is abuse of process of law.
13. In Interenational Advanced Research Centre for Powder Metallurgy
and New Material's case (supra) the Honourable Supreme Court has held that
mere breach of contract does not amount to cheating unless fraudulent or
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dishonest intention is shown at the beginning of the transaction.
14. In Rakesh P. Sheth's case (supra) this Court has held that when the
complaint filed for recovery of money, the police cannot be transformed into a
collection agent particularly when the cheques were dishonoured.
15. In Duraisamy vs. The Inspector of Police [Crl.O.P.No.1128 of 2016
Madras High Court dt.07.06.2021] this Court has held that in a contract in
dispute mere non-payment of amount lieu cannot said to be a cheating.
16. In the above cases the Apex Court and this Court have quashed the
complaints on the ground that there is no essential ingredients of Sections 406 and
420 IPC. From the above judgments it is also clear that mere civil proceedings are
pending the same itself cannot be a ground to quash the FIR.
17. In S.M.S. Pharmaceuticals Ltd., case (supra) petition has been filed to
quash the proceedings under Section 138 of N.I.Act, wherein the Honouable Apex
Court has held that unless a specific avement in the complaint that the Director is
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in charge of and responsible to the company for the conduct of its business, the
Director cannot be prosecuted.
18. In Sharad Kumar Sanghi's case (supra) the Honourable Supreme Court
has held that when the company has not arrayed as party, criminal proceedings
initiated against the Managing Director is not maintainable.
19. This Court also in Kashish Gupta and Ors. Case (Supra) has held that
unless the company is arrayed as party to the proceedings, the persons under the
capacity of employees of the company cannot be prosecuted and quashed the
proceedings.
20. From the above judgments, the Courts are quashed the proceedings
when the companies were not arrayed as accused and the allegations primarily
targeted the company. In such a situation the company not being made a party and
the Directors of the company prosecuted in their individual capacity were relieved
from the criminal prosecution. It is not the case in the present FIR. The very
allegation of false assurance on payment of money made against the A1 and A2 in
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their individual capacity. Therefore, this Court is of the view that merely the
company is not made as a party, it will not absolve the petitioners when the
allegation prima facie made against them.
21. Though, it is the contention of the learned counsel for the Petitioner that
there is no evidence to show that there is a deception from the inception, it is
relevant to note that whether the deception was present from the inception or
developed later is the matter of evidence. What has to be seen in the FIR stage is,
whether the allegation attracts the offence or not. The evidentry value of the
statements or ingredients cannot be gone into while exercising power under
Section 138 of the Negotiable Instruments Act.
22. It is relevant to note that in Uma Shankar Gopalika vs. State of Bihar
[(2005) 10 SCC 336] the Honourable Apex Court has held that only when there is
no material in the FIR that there are deception from the inception or there are no
intention to commit cheating, the FIR can be quashed.
23. In Vesa Holdings Private Limited and another vs. State of Kerala and
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others [(2015) 8 SCC 293] the Honourable Supreme Court has held 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.
24. In Vijayender Kumar's case (supra) the Apex Court has held that
merely civil remedy also be available to the informant/complainant that itself
cannot be a ground to quash a criminal proceedings.
25. In Sangeetaben Mahendrabhai Patel's case (supra) the Honourable
Apex Court has held that even there is pendency of proceedings under Section 138
of the Negotiable Instruments Act, not a bar for initiating criminal prosecution
under section 420 IPC for the same offence.
26. In Rajesh Bajaj case (supra) the Honourable Supreme Court has held
that it is not necessary that a complainant should verbatim reproduce in the body
of his complaint all the ingredients of the offence he is alleging. Nor is it
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necessary that the complainant should state in so many words that the intention of
the accused was dishonest and fraudulent. If the factual foundation for the offence
has been laid in the complaint the court should not hasten to quash the criminal
proceedings during investigation stage merely on the premise that one or two
ingredients have not been stated with details. In para 10 of the above judgement,
it is held as follows:
“10. It may be that the facts narrated in the present
complaint would as well reveal a commercial transaction or
money transaction. But that is hardly a reason for holding
that the offence of cheating would elude from such a
transaction. In fact, many a cheatings were committed in the
course of commercial and also money transactions. One of
the illustrations set out under Section 415 of the Indian
Penal Code (illustrations f) is worthy of notice now:
"(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." ”
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27. Similarly, in Lakshman's case (supra) the Apex Court has held that
mere filing of suit for recovery of money and complaint filed under Section 138 of
the Negotiable Instruments Act itself is no ground to quash the proceedings in the
complaints filed by the Appellant herein and further held that though the contract
is of civil nature, if there is an element of cheating and fraud, it is always open for
a party in a contract, to prosecute the other side for the offences alleged.
28. From the above judgments it is very clear that merely because the
commercial transaction it cannot be generally concluded that no criminal
prosecution is maintainable. If the allegation in the FIR prima facie show the
implication of the offence, the court cannot interfere the investigation at that stage.
On looking of the allegations in the present FIR, as indicated, the allegations are
made against both husband and wife on false promise and assurance given from
the very inception. It is also indicated that six cheques have been issued on the
promise of repayment, however the same was dishonoured. Thereafter, wife also
assured and given other cheques. It is also alleged that the very supply itself were
made on the promises and assurances by both the parties. That being the
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allegations, in the light of the judgments of the Apex Court reported in Rajesh
Bajaj vs. State NCT of Delhi and Ors. [(1999) 3 SCC 259] the allegations
targeted against the Petitioners and the validity of the allegations has to be seen
only during the investigation. In such a view of the matter, this Court is of the
view that at this stage the quashing of FIR will not arise.
29. In view of the same the Criminal Original Petition is dismissed.
Consequently connected Miscellaneous Petition is closed.
29.11.2021
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Crl.O.P.No.29244 of 2017 and Crl.M.P.No.16531 of 2017
N. SATHISH KUMAR, J.
ggs
Order in:
Crl.O.P.No.29244 of 2017
and Crl.M.P.No.16531 of 2017
29.11.2021
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