Pinku @ Dharmendra Bafna vs The Inspector Of Police
2022 Latest Caselaw 1553 Mad

                                                                                    Crl.O.P.No.26254 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated: 01.02.2022

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                               Crl.O.P.No.26254 of 2017 and
                                                Crl.M.P.No.15122 of 2017

                     Pinku @ Dharmendra Bafna                                  . . . Petitioner

                                                           Versus
                     1.The Inspector of Police,
                       Crime Branch - CID,
                       Chennai-600 002.

                     2.Krishna Lal                                             . . . Respondents

                     [2nd respondent impleaded as per order of this Court
                     dated 28.01.2019 in Crl.M.P.No.1285/2018 in
                     Crl.O.P.No.26254 of 2017]

                     PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to set
                     aside the order dated 22.08.2017 in Crl.R.C.No.36 of 2015, passed by the
                     I Additional City Civil Court, Chennai against Crl.M.P.No.5083 of 2014 and
                     discharge the petitioner from the case pending trial in C.C.No.734 of 2011 on
                     the file of the learned XI Metropolitan Magistrate, Chennai.


                                    For Petitioner       : Mr.P.Wilson
                                                           Senior Counsel for
                                                           M/s.Surana and Surana

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                                                                                            Crl.O.P.No.26254 of 2017

                                        For Respondents          : Mr.R.Kishore Kumar
                                                                   Government Advocate (Crl.Side) for R1
                                                                 : Mr.K.P.Anantha Krishna for R2


                                                             ORDER

(This case has been heard through video conference)

This Criminal Original Petition has been filed to set aside the order dated

22.08.2017 in Crl.R.C.No.36 of 2015 passed by the I Additional Judge, City

Civil Court, Chennai against Crl.M.P.No.5083 of 2014 and discharge the

petitioner from the case pending trial in C.C.No.734 of 2011 before the learned

XI Metropolitan Magistrate, Chennai.

2. The crux of the allegation in the final report filed against the petitioner

and the other accused, who were arrayed as A1 and A2 is that the

respondent/de facto complainant has invested a sum of Rs.4.65 Crores through

the petitioner at the instigation of A1 between 06.10.2005 and 17.11.2005

towards gold and silver on-line trading. The invested amount and profits

derived were not returned to the de facto complainant and the said amount has

been misappropriated by the accused persons. The final report was proceeded

as against both the accused/A1 and A2, since they have conspired together and

committed the offence under Sections 406, 420 and 120-B IPC. Challenging

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the final report, the accused filed the petitions in Crl.O.P.No.51 of 2010 and

Crl.O.P.No.780 of 2010 before this Court to quash the final report in

C.C.No.13970 of 2007. This Court by an order dated 04.04.2013 dismissed the

quash petition as against the petitioner herein/A2, however, allowed the

petition filed by A1. While dismissing the petition in Crl.O.P.No.780 of 2010

filed by this petitioner, this Court has observed that a prima facie case exists

against the petitioner/A2. Challenging the said order, the petitioner/A2 filed an

appeal before the Hon'ble Apex Court in Special Leave Petition in S.L.A(Crl.)

No.7403 of 2013 and the same was dismissed vide order dated 01.05.2014.

While dismissing the appeal, the Apex Court has observed that if the petitioner

files an application for discharge, it may be considered expeditiously,

independently and without being influenced by the observation made by the

High Court in the impugned order dated 04.04.2013.

3.It is also relevant to note that not satisfied with the final report, the

de facto complainant sought for further investigation before the trial Court in

Crl.M.P.No.11979 of 2007, which was allowed by the trial Court. Challenging

the said order, the petitioner filed Crl.R.C.No.245 of 2008 before this Court.

This Court, by its order dated 13.03.2003, set aside the order of the trial Court.

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The said order of this Court was affirmed by the Hon'ble Apex Court by

dismissing S.L.P.Crl.A.No.1283 of 2009 reported in 2009 (7) SCC 685

preferred by the de facto complainant.

4.Hence, the final report proceeded on the basis of the original

complaint. After dismissal of S.L.P to Appeal(Crl.) No.7403 of 2013 filed

against the order of the High Court declining to quash the proceedings against

the present petitioner, a discharge petition has been filed before the trial Court.

The trial Court by its order dated 27.04.2015 in Crl.M.P.No.5063 of 2014 has

dismissed the discharge petition holding that there are prima facie materials

available on record collected by the prosecution side against the petitioner.

Aggrieved over the same, a Criminal Revision Petition was filed before the

I Additional City Civil Court, Chennai in Crl.R.C.No.36 of 2015. The

Revisional Court has also confirmed the order of the learned Judicial

Magistrate holding that there is no infirmity or illegality in the order of the trial

Court and that there are sufficient materials to proceed against the petitioner.

Challenging the above order, the present petition has been filed under Section

482 Cr.P.C, as the second revision is barred under law.

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5.The learned Senior Counsel appearing for the petitioner submitted that

merely, because the second revision is not permissible under law, the petition

under Section 482 Cr.P.C. is very well maintainable and the Court can exercise

its jurisdiction. In support of his contention, the learned Senior Counsel relied

on the judgment of the Hon'ble Apex Court in Dhariwal, Tobacco Products

Limited and Others Vs. State of Maharashtra and Another reported in (2009)

2 SCC 370, wherein, the Apex Court has stated that even the second revision

is dismissed before the High Court and it is barred under Section 397(2)

Cr.P.C, the inherent power of the Court has been held to be available. The main

contention of the learned Senior Counsel appearing for the petitioner is that

this Court has quashed the proceedings as against A1, against whom similar

allegations were made to attract the offence under Sections 420 and 406 IPC,

on the reason that there are no materials available on the prosecution side. The

very statement of the de facto complainant recorded under Section 161 Cr.P.C

and the statements of other witnesses show that the amount was invested only

in the trade by the de facto complainant and he has invested the same in the

multi option trade and purchased the gold. In such trade, he gained profits and

the present complaint has been preferred only towards part of the transaction

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which went into loss. A suit has also been filed for recovery of money.

Therefore, his contention is that when the amount was invested and handed

over for the business purpose, at no stretch of imagination such entrustment

would constitute an offence of criminal breach of trust. Similarly, there is no

deception on the part of the accused to invest the amount in the business of

trade. The materials collected by the prosecution itself indicate that the offence

has not been made out. He has also submitted that the charge under Sections

406 and 420 IPC are mutually exclusive. Hence, he submitted that the Court

below has not considered the facts properly and simply dismissed the revision

petition. Therefore, he has submitted that the Court while exercising powers

under Section 482 Cr.P.C, could look into the materials and discharge the

accused. In support of his submissions, he has also placed reliance on the

following judgments:

1.State of Madhya Pradesh Vs. S.B.Johari and Others reported in (2000) 2 Supreme Court Cases 57.

2.J.Duraimunusamy Vs. State of Madras reported in MANU/TN/1320/2011.

3.Amish Devgan Vs. Union of India and Others reported in (2021) 1 Supreme Court Cases 1.

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6. The learned counsel appearing for the 2nd respondent submitted that

similar arguments have been made in the quash petition which reached its

finality. Therefore, under the pretext of the revision, the same ground is being

urged before this Court, which is impermissible.

7.In any event, his contention is that for framing the charges what is

required is not a proof beyond reasonable doubts, but mere suspicion is enough

to proceed against the charges. Hence, the learned counsel for the 2nd

respondent submitted that as the Court has already negatived similar sets of

allegations and dismissed the quash petition, the same cannot be urged once

again on the ground that the revision can be challenged under Section 482

Cr.P.C. He further submitted that both the Courts below found prima facie

materials to proceed against the accused. His further contention is that the

documents unearthed during investigation has also been subjected to forensic

expert examination. The signature of the accused was also found tallied

wherein, he has shown profits in the books maintained by him. Therefore, he

has to explain how he has invested, what amount he has received as profits and

whether such amounts have been given to the accused or not. Hence, this

petition is not maintainable and hence, the same is liable to be dismissed.

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8. In support of his contention, the learned counsel also relied upon the

judgments of the Hon'ble Apex Court in the case of Anil Rishi Vs. Gurbaksh

Singh reported in (2006) 5 SCC 558 and the case of State of Himachal

Pradesh Vs. Karanvir reported in (2006) 5 SCC 381.

9.Though the present petition has been filed under Section 482 Cr.P.C.,

to invoke the inherent powers of this Court, the order under challenge in this

petition is only the order passed by both the Courts below in refusing to

discharge the petitioner from the offence. Therefore, this Court can exercise its

inherent powers under Section 482 Cr.P.C, to prevent the abuse of process of

law. When the order in revision was sought to be challenged under Section 482

Cr.P.C., the Court cannot go beyond the provisions relating to discharge of the

accused.

10.The main contention of the learned Senior Counsel Mr.P.Wilson is

that the very statement of the accused itself shows that there was no deception

on the part of the accused and the amount has been invested in the trade,

involving buying and selling of gold. Further, his sworn statements also show

that there are profits derived by him and the nature of the business is a

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fluctuating one and loss also can occur. In such a view of the matter, merely

because the amount that was invested has not been returned due to the loss in

the business, such action cannot be construed as an offence of cheating or

entrustment. It is relevant to note that while disposing the quash petition filed

on the earlier occasion before this Court, the contention was not only confined

to the final report but also to the other materials like civil suit and the petition

filed for further investigation etc. After considering the entire materials, this

Court allowed the petition in favour of the first accused finding that there

exists prima facie materials against the second accused namely, the petitioner

herein and the matter has reached its finality as referred supra.

11.It is to be noted that for discharging the accused from the offence

what is required to be seen that whether the materials collected by the

prosecution is sufficient to proceed against the accused and if there are no

materials available to proceed further, then the discharge is automatic. It is also

well settled that to consider the discharge petition, the Court is bound to look

into the materials collected by the prosecution agency alone. Even if the Court

finds suspicion from the available materials, the Court can very well decline to

discharge the accused at final stage and proceed with the matter.

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12.Mere framing of the charges against the accused is not lead to the

inference that the accused has committed the offence. Whether it is a mere

business transaction or such loss occurred in the business transaction would

attract any offence of cheating or not has to be seen only in the trial. Whether

the intention to cheat or deceive is present from the beginning or not is a matter

of evidence. The statement of the de facto complainant indicates that he had

invested the amount only at the inducement of good profits shown by the

accused. Therefore, he has invested the money. It is relevant to note that

whether such inducement amounts to deception or not has to be seen by the

trial Court, after appreciating the evidence. This Court has already declined the

relief of quashing the final report as against the petitioner herein. At this stage

this Court, once again cannot conduct a roving enquiry merely because the

dispute appears to be Civil in nature. The same is not a ground to discharge the

petitioner particularly when the orders of the Court is already starring at the

petitioner herein/A2. At the same time it is the duty of the trial Court to

appreciate the evidence to find out whether the investment made in the business

is for gaining profits or not. Similarly, the trial Court also taken note of the fact

that the charges under Sections 406 and 420 IPC are mutually exclusive. In this

regard, it is useful to rely upon the judgment of the Hon'ble Apex Court in the

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case of B.Suresh Yadev V.Sharifa Bee and Another reported in (2007) 13

SCC 107, wherein the Court taking note of the fact that for constituting the

offence under Sections 406 and 420 IPC the main element is trust, in which the

de facto complainant reposes on the accused, whereas for the offence of

cheating, it is not necessary to prove the existence of trust on the part of the

victim and the accused. The main element required is an intention to deceive

from the inception. Therefore, while framing the charges the Court has to

consider whether Sections 406 and 420 IPC mutually exclusive or not. There

are several judgments to the effect that the Civil dispute cannot be given a color

of criminal case. Admittedly, there is no dispute over the above proposition of

law.

13.In the given case, while dealing with this petition under Section 482

Cr.P.C., for discharge of the accused, which is in the nature of a revision, as

already indicated, what is required to be seen is only the prima facie materials

and not the proof which constitutes an offence. On perusal of the statements of

the de facto complainant wherein, he has stated about the inducement made by

the petitioner for such investment, whether such statement would attract

offence under 420 IPC or not has to be seen only on the basis of evidence

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before the trial Court. Therefore, considering the prima facie materials,

particularly the other documents where the entries said to have been made by

the de facto complainant showing profits, this Court while exercising power

under Section 482 Cr.P.C, is of the view that as Courts below have found

prima facie materials to proceed further with the case, cannot re-appreciate the

entire materials.

14.In such view of the matter, I do not find any merits in this petition.

The learned Magistrate, while appreciating the evidence, has to consider the

overall evidence and also the materials placed before it as per Section 3 of

Evidence Act, 1872. The world matter does not confine only to the evidence,

but also to take within its fold presumption or inferences etc., to arrive at the

conclusion as to whether particular fact is proved or not.

15.Accordingly, this Criminal Original Petition is disposed of.

Consequently, connected Criminal Miscellaneous Petition is closed.

01.02.2022 Index : Yes / No Internet: Yes Speaking/non speaking order ms/psa

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To

1.The I Additional City Civil Court, Chennai.

2.The XI Metropolitan Magistrate, Chennai.

3.The The Inspector of Police, Crime Branch - CID, Chennai-600 002.

4.The Public Prosecutor, High Court, Madras-600104.

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N. SATHISH KUMAR, J.

ms/psa

Crl.O.P.No.26254 of 2017 and Crl.M.P.No.15122 of 2017

01.02.2022

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