Madras High Court
Periyasamy vs The Sub Inspector Of Police on 11 November, 2022
Crl.O.P.(MD) No.22801 & 22804 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.11.2022
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.(MD) Nos.22801 and 22804 of 2018
Crl.M.P. Nos.10761, 10762, 10764 and 10765 of 2018
Periyasamy ... Petitioner/
A2 in Crl.O.P.No.22804
Arumugam ... Petitioner/
A2 in Crl.O.P.No.22801
-vs-
1.The Sub Inspector of Police,
Palani Town Police Station,
Palani, Dindigul District Complainant in both
Crl.O.Ps.
2.S.Nachimuthu ... Respondent /
De-facto complainant
in both Crl.O.Ps.
Common Prayer: Criminal Original Petitions filed under Section 482 of
the Code of Criminal Procedure to call for the records in C.C.No.165 of
2018 pending on the file of the learned Judicial Magistrate, Palani and
quash the same against these petitioners.
For Petitioners : Mr.R.Maheswaran
For Respondents : Mr.M.Sakthikumar for R1
Government Advocate (Crl. Side)
Mr.A.Shajahan for R2
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COMMON ORDER
A1 and A2 have filed this quash petition against the Court
below treating the protest petition as private complaint and taking
cognizance against the petitioners for offences under Sections 420 and
506(i) IPC.
2. The second respondent gave a complaint against the
petitioners before the first respondent with an allegation that he is a civil
contractor and he entered into an agreement for the construction of the
house to one Uma Maheswari for a total consideration of Rs.6 lakhs.
Pursuant to the agreement, the second respondent started the construction
work and according to the second respondent, total amount that is due
and payable to him was Rs.1,80,000/- and when this amount was
demanded, the petitioners are said to have intimidated the second
respondent and refused to pay the amount. Based on this complaint, an
FIR came to be registered in Crime No.89/2014 before the first
respondent. The investigation was taken up and ultimately a closure
report was filed as 'mistake of fact' before the Court below. Aggrieved
by the same, the second respondent filed a protest petition and the same
was treated as a private complaint by the Court below and cognizance
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was taken against the accused persons for offences under Sections 420
and 506(i) IPC. Aggrieved by the same, the present quash petitions have
been filed by A1 and A2.
3. Heard the learned counsel for the petitioner, the learned
Government Advocate (Crl. Side) for the respondent police and the
learned counsel for the 2nd respondent.
4. On a careful reading of the allegations that have been made
by the second respondent, it is seen that it is a clear case of breach of
contract. Admittedly, the de-facto complainant had entered into an
agreement with A1 to carry out a construction work. While carrying out
the construction work, even in the complaint, it is mentioned that the
second respondent received certain amounts on a regular basis.
Ultimately, a sum of Rs.1,80,000/- was payable to the second respondent
and when this amount was not paid, he seems to have questioned the
petitioners and they are said to have threatened him with dire
consequences.
5.Insofar as the offence of cheating is concerned, a culpable
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intention for cheating must be present even at the inception and it cannot
be presumed on the failure to keep up a promise subsequently. There is a
marked difference between the offence of cheating and a breach of
contract. The facts of the present case at the best only leads to a breach
of contract and no offence of cheating has been made out. Useful
reference can be made to the judgment of this Court in T.Chandrasekar
v. The State rep. by the Inspector of Police, Central Crime Branch
Land Grabbing Cell and another reported in 2011 (3) MLJ (Crl) 644.
Reference can also be made to the judgment of this Court in
R.Jayaraman and others and K.Ganesan and others reported in 2019
(1) MLJ (Crl) 460.
6. Insofar as the offence under Section 506(i) IPC is concerned,
the allegation made in the complaint at the best only makes out empty
threats as against the second respondent and that by itself will not make
out an offence of criminal intimidation unless there is evidence to show
that the threat is a real one. Useful reference can be made to the
judgment of the Apex Court in Vikram Johar v. The State of
Uttarpradesh and others reported in 2019 (3) MLJ Crl. 295.
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7. The respondent police at the time of filing the closure report
as 'mistake of fact' has taken into consideration all these facts and the
Court below failed to notice that neither the offence of cheating nor the
offence of criminal intimidation has been made out in this case.
8. The continuation of the criminal proceedings as against the
petitioners will amount to an abuse of process of Court, which requires
interference by this Court under Section 482 of the Code of Criminal
Procedure.
9. In the result, the proceedings in C.C.No.165 of 2018 on the
file of the learned Judicial Magistrate, Palani, is hereby quashed and both
the Criminal Original Petitions stand allowed. Consequently connected
Miscellaneous Petitions are closed.
11.11.2022
Internet : Yes
RR
To
1.The Judicial Magistrate
Theni.
2.The Inspector of Police,
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Crl.O.P.(MD) No.22801 & 22804 of 2018
District Crime Branch
Theni
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Crl.O.P.(MD) No.22801 & 22804 of 2018
N.ANAND VENKATESH, J.
RR
Crl.O.P.(PD) (MD)Nos.22801 and 22804 of 2018
11.11.2022
https://www.mhc.tn.gov.in/judis
