Madras High Court

J.Mangilal vs The Inspector Of Police on 5 September, 2022

                                                                               Crl.O.P.No.21095 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 05.09.2022

                                                         CORAM:

                                  THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                 Crl.O.P.No.21095 of 2022
                                                            and
                                            Crl.M.P.Nos.13765 and 13757 of 2022


                J.Mangilal                                                 ... Petitioner

                                                            Vs.

                1. The Inspector of Police, [Crime],
                   P-6, Kodungaiyur Police Station,
                   Chennai – 600 118.
                   [Crime No.618 of 2018]

                2. Nagaraj                                                 ... Respondents

                Prayer: Criminal Original petition filed under Section 482 of Code of Criminal
                Procedure, to call for the entire records connect with the case C.C.No.338 of
                2022 on the file of the X Metropolitan Magistrate, Egmore, Chennai – 600 008
                and to quash the same.

                                  For Petitioner    : Mr. K.Kannan

                                  For R-1           : Mr. E.Raj Thilak
                                                      Additional Public Prosecutor




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                                                                                Crl.O.P.No.21095 of 2022

                                                          ORDER

This Criminal Original Petition has been filed calling for the entire

records connected with the case in C.C.No.338 of 2022 on the file of the X

Metropolitan Magistrate, Egmore, Chennai – 600 008 and to quash the same.

2. The Petitioner is a sole accused facing charges for the offences

under Sections 406 and 420 IPC. The case of the prosecution is that the

Petitioner was running a Chit transaction from the year 2013. On his

inducement, the de-facto complainant and other victims have subscribed to the

chit in the year 2015. The second respondent paid a sum of Rs.2,00,000/- and

thereafter the Petitioner failed to return the amount and thereby cheated him to

the tune of Rs.2,00,000/-. That apart, the Petitioner so far cheated fifteen

victims in a similar manner.

3. The learned Counsel for the petitioner submitted that no such

offences have been made out as against the petitioner under Sections 406 and

420 IPC. Even according to the second respondent, the petitioner conducted a

Private unregistered Chit transaction and as such there is no question of

misappropriation and cheating. Admittedly, the petitioner started the Chit

transaction in the year 2013 and it was completed in the year 2015. After

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Crl.O.P.No.21095 of 2022

receipt of entire amount, the de-facto complainant lodged complaint alleging

that the Chit transaction amount was not paid to the second respondent. He

further submitted that the first respondent after receipt of the complaint,

registered an FIR in Crime.No.618 of 2018. However, the petitioner was never

issued any notice under Sections 41, 41A of Cr.P.C and mechanically filed a

final report.

4. It is seen that the petitioner is a sole accused and admittedly he was

running a chit transaction without any proper license or permission, from the

year 2013. The defacto complainant along with other victims subscribed to the

chit transaction from the year 2013 and it was completed in the year 2015.

However, the petitioner failed to return the matured chit amount to the victims,

thereby committed offences under Sections 406 and 420 IPC. All the grounds

raised by the petitioner are mixed question of facts and it cannot be taken into

consideration in a quash petition.

5. It is relevant to rely upon the judgment of the Hon'ble Supreme

Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of

Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-

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Crl.O.P.No.21095 of 2022

" 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.

13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.

6. Recently, the Hon'ble Supreme Court of India dealing in respect of

the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the case of

Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it has been held

as follows:

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Crl.O.P.No.21095 of 2022

“19. After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.

20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.”

7. Further the Hon'ble Supreme Court of India also held in the order

dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs.

K.R.Meenakshi & anr, as follows:

"9. It is too late in the day to seek reference

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Crl.O.P.No.21095 of 2022

to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged.

..............

13. A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage...................."

The above judgments are squarely applicable to this case and as such, the

points raised by the petitioner are mixed question of facts and it cannot be

considered in quash petition under Section 482 Cr.P.C.

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Crl.O.P.No.21095 of 2022

8. In view of the above discussion, this Court is not inclined to quash

the proceedings in C.C.No.338 of 2022 on the file of the X Metropolitan

Magistrate, Egmore, Chennai – 600 008. The Trial Court is directed to

complete the Trial, within a period of six months from the date of receipt of a

copy of this Order.

9. Accordingly, this criminal original petition is dismissed.

Consequently, connected Miscellaneous Petitions are closed.