Madras High Court
James vs State Through on 23 March, 2022
Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 23.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
and
Crl.M.P(MD)No.11161 of 2021
1.Crl.R.C(MD)No.932 of 2021:-
James ... Petitioner/Appellant/
Sole Accused
Vs.
1.State through,
The Inspector of Police,
CBCID Police Station,
Virudhunagar in
District Crime Branch,
Madurai Police Station.
(Crime No.130 of 2000) ... 1st Respondent/1st Respondent/
Complainant
2.G.Rengasamy ... 2nd Respondent
(R – 2 impleaded vide order dated 22.12.2021
made in Crl.M.P(MD)No.11787 of 2021)
PRAYER: Criminal Revision Case filed under Section 397 read with
Section 401 of the Code of Criminal Procedure, to call for the
records and set aside the order of conviction and sentence rendered
by the trial Court in C.C.No.23 of 2011 on the file of the learned
Judicial Magistrate No.IV, Madurai, dated 22.05.2015 confirmed by
the learned I Additional Sessions Judge, Madurai in Crl.A.No.20 of
2015, dated 20.09.2021 and allow this Criminal Revision Petition.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
For Petitioner : Mr.V.Kathirvelu
Senior Counsel
for Mr.P.Subbiah
For R – 1 : Mr.S.Ravi
Additional Public Prosecutor
For R – 2 : Mr.C.Muthu Saravanan
2.Crl.R.C(MD)No.16 of 2022:-
G.Rengasamy ... Petitioner/P.W.8/
Defacto complainant
Vs.
1.T.James
2.A.Santhi
3.Helan Rosalin Pornima ... Respondents 1 to 3/Respondents/
Accused
4.The State represented by,
The Inspector of Police,
Crime Branch CID,
Virudhunagar. ... 4th Respondent/Respondent/
Complainant
PRAYER: Criminal Revision Case filed under Section 397 read with
Section 401 of the Code of Criminal Procedure, to call for the
records and set aside the Judgment dated 20.09.2021 made in
Crl.A.No.40 of 2015 on the file of the learned I Additional District
and Sessions Judge, Madurai, confirming the Judgment dated
22.05.2015 made in C.C.No.23 of 2011 on the file of the learned
Judicial Magistrate No.IV, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
For Petitioner : Mr.C.Muthu Saravanan
For R – 1 : Mr.S.Ravi
Additional Public Prosecutor
For R – 4 : Mr.V.Kathirvelu
Senior Counsel
for Mr.P.Subbiah
COMMON ORDER
Crl.R.C(MD)No.932 of 2021 has been filed to set aside the
order of conviction and sentence rendered by the trial Court in
C.C.No.23 of 2011 on the file of the learned Judicial Magistrate
No.IV, Madurai, dated 22.05.2015, confirmed by the learned I
Additional Sessions Judge, Madurai in Crl.A.No.20 of 2015, dated
20.09.2021.
2.Crl.R.C(MD)No.16 of 2022 has been filed to set aside the
the Judgment dated 20.09.2021 made in Crl.A.No.40 of 2015 on the
file of the learned I Additional District and Sessions Judge, Madurai,
confirming the Judgment dated 22.05.2015 made in C.C.No.23 of
2011 on the file of the learned Judicial Magistrate No.IV, Madurai.
3.Totally there are four accused, in which the petitioner in
Crl.R.C(MD)No.932 of 2021 is arraigned as the first accused
(hereinafter referred to as 'the first accused'). The second accused
already died and the trial Court acquitted A.3 and A.4.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
4.The case of the prosecution is that the accused persons
conspired together and collected amounts from the dealers and
cheated them. In the year 1998, the accused started the Gas
company in the name and style of 'Samson LPG Bottlers Company'
for supplying LPG gas cylinder at Nagercoil. They also opened office
in the name of 'Shanthi Traders' at Tirunelveli and Madurai and they
caused advertisements in the daily calling for dealership for the firm
for particular areas. In view of the said advertisement, the victims
had deposited money for their dealership for their respective areas
and on receipt of the deposits, they were issued receipts. The
accused had collected a sum of Rs.1,97,78,155/- from the victims.
The entire amount was converted into their own use and also
purchased valuable properties and thereby misappropriated the
funds collected from the various persons and cheated them.
5.The petitioner in Crl.R.C(MD)No.16 of 2022, namely, P.W.8-
defacto complainant (hereinafter referred to as 'the defacto
complainant') was selected as President of the Association which
was formed as 'Samson Gas Dealers Welfare Association' to take
appropriate action as against the accused. He was examined as P.W.
8. On his complaint, the first respondent police registered the F.I.R
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Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
against the accused in Crime No.130 of 2020 for the offences under
Sections 406, 420 r/w 120(b) of the I.P.C. After completion of
investigation filed the final report and the same has been taken
cognizance in C.C.No.23 of 2011 on the file of the learned Judicial
Magistrate No.IV, Madurai.
6.On the side of the prosecution, examined P.W.1 to P.W.77
and marked Exs.P.1 to P.592 and M.O.1 was marked on the side of
the prosecution and on the side of the accused, they have marked
Ex.D.1 and Ex.D.2.
7.On perusal of oral and material evidence, the trial Court
acquitted all the accused persons under Section 120(b) of I.P.C and
acquitted A.3 and A.4 for the offence punishable under Sections
120(b) and 420 of I.P.C. Insofar as the second accused is
concerned, during trial the second accused died and convicted the
first accused for the offence under Section 420 of IP.C and
sentenced him to undergo three years simple imprisonment and
imposed a fine of Rs.5,000/- in default to undergo three months
simple imprisonment. Aggrieved by the same, the first accused
preferred Crl.A.No.20 of 2015 and the defacto complainant
preferred an appeal in Crl.A.No.40 of 2015 as against the acquittal
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Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
of A.3 and A.4 and for enhancement of punishment against A.1. The
State also filed an appeal in Crl.A.No.14 of 2018 for enhancement of
punishment as against the first accused and as against the acquittal
of A.3 and A.4.
8.The first Appellate Court confirmed the Judgment of the trial
Court and dismissed all the appeals. Aggrieved by the same, the
first accused preferred Crl.R.C(MD)No.932 of 2021 and
the defacto complainant preferred Crl.R.C(MD)No.16 of 2022.
9.Both the revisions are arising from common judgment and
as such, this Court decided these revisions by common order.
10.The learned Senior Counsel appearing for the petitioner in
Crl.R.C(MD)No.932 of 2021 would submit that the entire
transactions are business transactions and there is absolutely no
material to attract the offence under Section 420 of I.P.C. Even
according to the case of the prosecution, from the year 1998 to
2000, they collected deposits from the dealers and they supplied
gas cylinders till the beginning of the year 2000 and subsequent
period, they failed to supply the gas cylinders. Therefore, from the
inception there was no mens rea for the first accused to cheat the
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
dealers. They never induced the dealers to deposit money for their
respective dealership with the intention to cheat them. In fact, most
of the dealers were already settled and now he is ready and willing
to return the deposits which were collected from the dealers. In
fact, the trial Court observed that there was no intention on the part
of the accused to deceive any one at the time of beginning the
transaction, subsequent change of circumstances, causing inability
to perform the contract after running the industry for more than
1-1/2 years, when it being so, the trial Court ought not to have
convicted the first accused for the offence under Section 420 of
I.P.C. It is evident from all the customers as well as the retail
dealers that the transaction was going on for several months after
commencement of the business and also the chain of activities by
receiving the empty cylinders and supplying refill were continuing
for more than 1-1/2 years after the commencement of the supply of
domestic gas, the question of criminal intention to deceive anyone is
totally absent. The intention is required to prove at the time of
inception of the transaction in order to bring home guilt on the
accused. Asfar as the first accused is concerned, he had no intention
to deceive anyone. But he was involved in a genuine business
transaction for supplying domestic gas cylinder and it was carried
for some time and as such, the question of intention is absent.
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Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
11.Heard the learned counsel appearing for the first accused,
the learned Additional Public Prosecutor appearing for the State and
the learned counsel appearing for the defacto complainant and
perused the entire materials available on record.
12.On a perusal of the records revealed that admittedly from
the year 1998, the accused had started the Gas company in the
name and style of LPG Bottlers Company for supplying LPG gas
cylinders to the general public. Whereas, the license was issued with
necessary endorsement by the explosive department only on
27.03.2001 and the same was delivered to the accused on
28.03.2002. All the accused persons, namely A.1 to A.4, started a
partnership firm in the name of Shanthi Traders in Tirunelveli and
Madurai from 20.10.1998 and 03.12.1998 respectively. The said
firm was registered only on 24.01.2000. They caused
advertisements in the newspapers calling upon the dealership for
their respective areas. In pursuant to the said advertisements, the
victims deposited amounts for their respective dealership areas as
refundable deposits in the office of the Shanthi Traders and other
amounts under different heads. All the dealers were issued receipts
signed by A.1 and A.2. In their absence, their employees issued
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Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
receipts as per the instruction given by the first and second
accused. The entire deposits were credited in the account opened in
the name of Shanthi Traders in the State Bank of Travancore in
Tirunelveli Branch. From January 1998 to July 2000 a sum of
Rs.71,86,473.50/- was credited in the said account. Subsequently, a
sum of Rs.71,81,080.25/- was withdrawn from the said account.
Thereafter, another one Bank account was opened in the name of
Shanthi Traders in State Bank of Travancore in Madurai Branch. In
the same period, the first accused purchased a house from
Saraswathi on 30.12.2019 for the sale consideration of
Rs.4,50,000/-. On 03.11.1999, the first accused purchased the
property from Narayana Nadar and Balakrishnan and on the same
day, the first accused purchased another property from Sikamani,
Kovilpatti, Balu, Stevan and Balakrishnan. On 15.07.1999, he also
purchased another property from Ramasamy, Sivasubramaniyan,
Kailasam, Sriramar, Jeyarani, Ramalakshmi, Panjavarnam and
Pramasakthivelsamy.
13.On perusal of evidence revealed that when the victim
contacted the second accused, he promised him that he would get
back the total amount of the deposit, if he was appointed as dealer.
Believing his words, all the dealers deposited their respective
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Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
deposits for their respective area. The defacto complainant himself
deposited a sum of Rs.2,49,200/- and obtained receipts and
dealership certificates which were marked as Ex.P.370 to Ex.P.390.
However, from the beginning of the year 2000, the accused stopped
the supply of gas cylinders and did not return the amount. All the
accused have misappropriated the sum paid by the dealers and
thereby cheated them. Though the accused supplied cylinders for
some period, admittedly, they have no license from the authority
concerned to run LPG cylinder company. P.W.73, who was the then
Deputy Chief Controller of Executor in Sivakasi, deposed that the
license was delivered to the accused to run LPG cylinder only on
28.03.2002. Therefore, the accused did not disclose it to the dealers
and published advertisements and collected huge amount from the
various persons. Further, the partnership firm called Shanthi Traders
was registered only on 24.01.2000. Therefore, the accused had an
intention to cheat the dealers, collected deposits in the name of
Shanthi Traders, which was not at all registered firm. When the
accused failed to supply the cylinders to the dealers, they ought to
have refund the deposits which were deposited by the dealers for
their partnership. Admittedly, the accused did not refund the deposit
to any of the dealer. Insofar as A.3 and A.4 are concerned, they did
not have any active role in the partnership firm. A.3 is the wife of
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Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
A.2 and A.4 is the wife of A.1. They were used only to register the
partnership firm and there are no specific allegations against them
even as per the case of the prosecution. Therefore, the trial Court
convicted the first accused and acquitted A.3 and A.4 and the same
was confirmed by the first Appellate Court. In view of the above,
this Court finds no infirmity or illegality in the order passed by the
Court below. Accordingly, these Criminal Revision Cases are
dismissed. Consequently, connected Miscellaneous Petition is closed.
23.03.2022
Index : Yes/No
Internet : Yes
ps
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.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)Nos.932 of 2021 & 16 of 2022
G.K.ILANTHIRAIYAN, J.
ps
To
1.The Judicial Magistrate No.IV,
Madurai.
2.The I Additional Sessions Judge,
Madurai.
3.The Inspector of Police,
Crime Branch CID,
Virudhunagar.
Order made in
Crl.R.C(MD)Nos.934 of 2021 & 16 of 2022
23.03.2022
https://www.mhc.tn.gov.in/judis
