Madras High Court
A.Abdul Amzhad vs The Inspector Of Police on 21 April, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 21/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.OP(MD)No.6435 of 2019
and
Crl.MP(MD)Nos.4282 and 4283 of 2019
A.Abdul Amzhad : Petitioner/Sole Accused
Vs.
1.The Inspector of Police,
Batlagundu Police Station,
Batlagundu.
(Crime No.157 of 2017)
2.A.Murali Kannan : Respondents
Prayer: Criminal Original Petition has been filed
under section 482 of the Criminal Procedure Code, to call
for the records in CC No.322 of 2018 on the file of the
Judicial Magistrate, Nilakottai and quash the same.
For Petitioner : Mr.D.Shanmugaraja Sethupathi
For 1st Respondent : Mr.SS.Madhavan
Government Advocate
(Criminal side)
For 2nd Respondent : Mr.R.Velmurugan
https://www.mhc.tn.gov.in/judis
2
O R D E R
This petition has been filed seeking quashment of
the case in CC No.322 of 2018 on the file of the Judicial
Magistrate, Nilakottai.
2.The case of the prosecution in brief:-
On 22/08/2012, the accused borrowed a sum of Rs.
6,00,000/-and another sum of Rs.4,55,000/-, on 24/05/2015
from the de-facto complainant. With an intention to cheat
the money, the accused failed to repay the same and drag
on the matter. When it was demanded, on 28/05/2016 at
about 7.00 pm, the accused abused him in filthy language
and also criminally intimidated. Based upon the complaint
given by the de-facto complainant, a case in Crime No.157
of 2017 has been registered for the offences under
sections 420, 294(b) and 506(i) IPC and after completing
the formalities of investigation, final report was filed
in CC No.322 of 2018 and it was taken cognizance by the
trial court.
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3.Seeking quashment of the same, this petition came
to be filed on the ground that it is absolutely out and
out money transaction between the second respondent
herein, who is the de-facto complainant and one
Sundaramoorthy, who was originally arrayed as the 2nd
accused and subsequently his name was deleted from the
final report and later included. Apart from the factual
aspects, other legal grounds have also been raised by the
petitioner stating that since it is a money transaction,
the offence under section 420 IPC is not attracted and
other offences are also not attracted in the facts and
circumstances of this case.
4.Heard both sides. The entire CD file has been
called and perused.
5.At the outset, certain factual aspects are
required for considering this petition. Perusal of the CD
file shows that there was no documentary evidence with
regard to the money transaction. In 2012, the first
accused demanded and received Rs.6,00,000/- and in 2015,
also for performing his daughter's marriage, he received
Rs.4,55,000/-. So totally, Rs.10,55,000/- was borrowed by
him.
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6.As mentioned earlier, there is no documentary
evidence. During the course of investigation, the de-
facto complainant has produced the CD which contains the
telephonic conversation between the parties and one
Sundaramoorthy introduced A1 to the de-facto complainant
and thereafter, there were direct money transactions
between the de-facto complainant and this petitioner.
7.As mentioned earlier, the name of the above said
Sundaramoorthy has been subsequently deleted from the
final report. The above said Sundaramoorthy appears to
have given a complaint against the second respondent
herein stating that the de-facto complainant for the
purpose of meeting the medical expenses of his wife, he
requested the loan and he pledged 8.50 sovereigns of gold
jewels for the purposing of raising the money.
Thereafter, he did not redeem the jewels and according to
him, the above said occurrence took place on 05/02/2016
and 22/01/2016. When that was not returned, he made a
complaint, on 21/10/2019, much after the registration of
the FIR.
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8.As mentioned earlier, during the course of
investigation, the involvement of Sundaramoorthy in the
occurrence was doubted and so, his name was deleted from
the final report. But later, on information his name was
also included. Now the Inspector of Police says that
only the second accused namely Sundaramoorthy received
the money from the de-facto complainant, who in turn gave
it to the petitioner herein. Now the final report has
been altered by including the above said Sundaramoorthy
also. So these are the factual grounds.
9.In the light of the above said factual grounds,
the learned counsel appearing for the petitioner would
rely upon number of judgments for the purpose of argument
that the allegation against the petitioner does not
attract the offence of 420 IPC. For that purpose, he has
relied upon the decision of the Hon'ble Supreme Court in
the case of Mitesh Kumar J.Sha Vs. The State of Karnataka
and others (Criminal Appeal No.1285 of 2021, dated
26/10/2021. In that case, the distinction between the
mere beach of contract and the offence of cheating has
been elaborately discussed in para 39, wherein the
Hon'ble Supreme Court was of the considered view that the
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criminal intention to cheat might writ large on the face
of the record, even at the initial stage of the
transaction. But the subsequent conduct may also be taken
into account. So according to the Hon'ble Supreme Court,
the intention is the main ingredient for the offence
under section 420 IPC.
10.Here, as mentioned earlier, at one point of time,
it was the case of the prosecution that there was a
direct money transaction between this petitioner and the
de-facto complainant and at another point of time,
Sundaramoorthy only received the money from the de-facto
complainant, who in turn gave the same to the petitioner
herein. So these are the factual issues, which cannot be
gone into by this court.
11.Perusal of the entire CD file shows that the
prosecution rests upon one circumstance that after
several demands were made by the de-facto complainant,
the petitioner was not willing to repay the amount and
even refused to execute any document. This was the
argument of the second respondent/de-facto complainant
also.
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12.According to the prosecution and the second
respondent, the intention of cheating can be inferred
from the conduct of the petitioner in refusing to repay
the amount and execute any document. But however, the
learned counsel appearing for the petitioner would submit
that in view of the intervention of the above said
Sundaramoorthy, no intention of cheating can be
attributed to the petitioner. Even though, there is a
total denial on the part of the petitioner with the above
transaction, as mentioned earlier, this is a factual
aspect. Purely a factual issue, which cannot be taken
into account. Noting that there was a documentary
evidence, evidencing the transaction between the parties,
this court also insisted the petitioner to settle the
issue, even by referring the matter to the mediation
centre. But he has refused stating there there was no
direct transaction between them. Since the petitioner is
working in the Police Department, the said complaint has
been given to recover the money, which was payable by the
second accused namely Sundaramoorthy. So the main
ingredient for the offence under sections 420 IPC is not
attracted.
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13.Regarding the offences under sections 294(b) and
506(i) IPC also, it is seen that there was oral
conversation between the the de-facto complainant and the
petitioner through the mobile phone. So in such
circumstances, the offences under sections 294(b) and
506(i) IPC may not also be attracted, in view of the
decision of this court in the case of R.Lochanan Vs. The
Inspector of Police, South Thamaraikulam Police Station,
Kanyakumari District and another made in Crl.OP(MD)No.
23128 of 2013, dated 28/06/2018. Because the main
ingredient of section 294(b) IPC is that it must be
uttered in the public place or in the public view or in
the annoyance of others. Absolutely, there is no such
ground.
14.In respect of section 506(i)IPC also, the
ingredients of section 506(1) IPC are not attracted.
There is no allegation to the effect that the de-facto
complainant entertained or suffered life threat. So in
the light of the above said discussion, the final report
filed against the petitioner is liable to be quashed.
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15.In the result, this criminal original petition is
allowed. The impugned CC No.322 of 2018 on the file of
the Judicial Magistrate, Nilakottai, is hereby quashed as
against the petitioner. Consequently, connected
Miscellaneous Petitions are closed.
21/04/2022
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
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 Judicial Magistrate,
Nilakottai,
Dindigul District.
2.The Inspector of Police,
Batlagundu Police Station,
Batlagundu.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.OP(MD)No.6435 of 2019
21.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
