Madras High Court
Dinakaran vs The State Rep. By on 12 April, 2022
Crl.O.P.(MD) No.9501 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.04.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD) No.9501 of 2021
and
Crl.M.P(MD) No.4845 of 2021
1.Dinakaran
2.Mahalakshmi
3.Saiprasanna
4.Raghul Sayee @ Rahul
5.Venkatesh ...Petitioners/
Accused Nos. 1 to 5
Vs.
1.The State rep. by
The Inspector of Police,
Central Crime Branch,
Madurai City, Madurai.
Crime No.18 of 2020 ...1st Respondent/
Complainant
2.Sundar P.L ...2nd Respondent/
Defacto Complainant
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
this Court to call for the records relating to the FIR in Crime No.18 of 2020
on the file of the first respondent police and quash the same as illegal.
1/10
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Crl.O.P.(MD) No.9501 of 2021
For Petitioner : Mr.R.Gandhi
For R1 : Mr.B.Thanga Aravindh
Government Advocate (Crl.Side)
For R2 : Mr.K.Sudalaiyandi
ORDER
The criminal original petition has been filed seeking to quash the
proceedings in FIR registered in Crime No.18 of 2020 on the file of the first
respondent.
2.The case of the prosecution is that the petitioners had borrowed
money from the second respondent and they promised to return it along with
interest. The second respondent also gave his own place to them for monthly
rent of Rs.20,000/- to run their business. When the second respondent asked
them to repay the borrowed amount, the petitioners abused him with filthy
languages and threatened him with dire consequences. Hence, the second
respondent lodged a complaint, the first respondent had registered a case in
Crime No.18/2020 for the offence under Section 420 of IPC.
3.There are totally 5 accused persons, in which, the petitioners are
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Crl.O.P.(MD) No.9501 of 2021
arrayed as A1 to A5. Notably, all are the same family members. It is seen
from the allegations that there were business transactions between the first
petitioner and the second respondent. Infact, the first petitioner herein and
the son of the second respondent are partners in the Anirudh Non-Wovens" by
partnership dated 30.01.2017. They joined together for the purpose of
carrying on the business of manufacture and sale of non-woven bags in
partnership with effect from 30.01.2017, in the name and style Anirudh Non-
Wovens. The petitioners 1 and 2 are husband and wife, 3 and 4 are their sons
and the fifth petitioner is none other than brother of the petitioner herein.
There was misunderstanding developed between the first petitioner and the
son of the second respondent over sharing of the profit in the partnership
firm. In order to prevent the first petitioner from claiming his due share, the
defacto complainant had lodged a complaint as against all the petitioners.
4.With the above said allegations, even assuming that the entire
transactions are true, no offence is made out under Section 420 of IPC as
alleged in the FIR. It is clear that there is a civil dispute pending between the
first petitioner and the second respondent. Now, it has been given criminal
colour by the impugned FIR.
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Crl.O.P.(MD) No.9501 of 2021
5.It is well settled that in order to bring the charge for the offence under
Section 420 of IPC:
(i)the accused must fraudulently or dishonestly made some false
compromise
(ii)the defacto complainant must act on the strength of such false
representation or compromise.
6.In the case on hand, the petitioners neither made any dishonest nor
any fraudulent representation to the second respondent. Therefore, the
offence under Section 420 of IPC is not at all made out as against the
petitioners.
7.On perusal of the entire allegations made in the FIR revealed that
even according to the second respondent, the entire allegations are related to
many transactions between them. Therefore, the criminal prosecution is used
as an instrument to harass the petitioners and as such, the present FIR has
been registered with an ulterior motive and it cannot be sustained as against
the petitioners.
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Crl.O.P.(MD) No.9501 of 2021
8.It is relevant to rely upon the judgment made by the Honourable
Supreme Court of India in the case of M/s. Indian Oil Corporation Vs.
NEPC India Limited and others [(2006) 6 SCC 736], held that the civil
liability cannot be converted into criminal liability and it is necessary to take
notice of a growing tendency in business circle to convert purely civil dispute
in criminal case. This is obviously on account of prevalent impression that
civil law remedies are time consuming and do not adequately protect the
interest of lender/creditors. Such a tendency is seen in several family disputes
also, leading to irretrievable breakdown of marriages/families. There is also
an impression that if a person could somehow be entangled in a criminal
prosecution, there is a likelihood of imminent settlement. Any effort to settle
civil disputes and claim which do not involve any criminal offence by
applying pressure through criminal prosecution should be deprecated and
dishonoured.
9.In the case of G.Sagar Suri Vs. State of Uttar Pradesh [2000 (2)
SCC 636], the Honourable Supreme Court of India held as follows:-
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Crl.O.P.(MD) No.9501 of 2021
“It is to be seen if a matter, which is essentially of
civil nature, has been given a cloak of criminal offence,
criminal proceedings are not a short cut of other remedies
available in law. Before issuing process a criminal Court
has to exercise a great deal of caution. For the accused it
is a serious matter. This Court has laid certain principles
on the basis of which High Court is to exercise its
jurisdiction under Section 482 of the Code. Jurisdiction
under this Section has to be exercised to prevent abuse of
the process of any Court or otherwise to secure the ends of
justice.”
10.It is relevant to rely upon the land mark Judgment of the Honourable
Supreme Court of India in the case of State of Haryana and others Vs.
Bhajanlal and others reported in 1992 Supp (1) SCC 335, in which, the
Honourable Supreme Court of India has laid down the following categories of
instances wherein inherent powers can be exercised in order to secure the
ends of justice as follows:-
“(a) where the allegations made in the First
Information Report or the complaint, even if they are taken
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Crl.O.P.(MD) No.9501 of 2021
at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case
against the accused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of the
Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the
FIR or 'complaint and the evidence collected in support of
the same do not disclose the commission of any offence and
make out a case against the accused;
(d) where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated
under Section 155(2) of the Code;
(e) where the allegations made in the FIR or
complaint are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused;
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Crl.O.P.(MD) No.9501 of 2021
(f) where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due
to private and personal grudge.”
11.In view of the above, the impugned FIR cannot be sustained as
against the petitioners and it is liable to be quashed. Accordingly, the FIR in
Crime No. 18/2020 is quashed and the criminal original petition is allowed.
Consequently, the connected miscellaneous petition is closed.
12.04.2022
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
lr
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Crl.O.P.(MD) No.9501 of 2021
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Inspector of Police,
Central Crime Branch,
Madurai City, Madurai.
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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Crl.O.P.(MD) No.9501 of 2021
G.K.ILANTHIRAIYAN,J.
lr
Crl.O.P.(MD) No.9501 of 2021
12.04.2022
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