Madras High Court
Pawan Kumar Jain vs N.Radhakrishnan on 7 September, 2022
Crl.O.P.No.9973 of 2019
and Crl.M.P.No.5184 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.09.2022
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.9973 of 2019
and
Crl.M.P.No.5184 of 2019
Pawan Kumar Jain .. Petitioner
Vs.
N.Radhakrishnan ..Respondent
PRAYER : Criminal Original Petition has been filed under section 482 of
Criminal Procedure Code to call for the records in C.C.No.44 of 2019 on
the file of the Court of Judicial Magistrate No.I, Mayiladuthurai and quash
the same.
For Petitioner : Mr.Niranjan Rajagopalan
For Respondent : No appearance
ORDER
This Criminal Original Petition is filed to quash the private
complaint initiated by the respondent alleging that the petitioner has
committed criminal breach of trust and cheating.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9973 of 2019
and Crl.M.P.No.5184 of 2019
2. The learned counsel for the petitioner would submit
that the gold was entrusted to the respondent for making jewels has been
misappropriated by him. Thereafter, a false complaint was given by the
respondent to the police in the year 2006 and the same was not entertained
being the false complaint. Then the respondent approached the learned
Judicial Magistrate No.I, Mayiladithurai by way of a petition under
Section 200 of Cr.P.C., and the same was considered by the Magistrate in
C.C.No.1794 of 2010 by exercising his power under Section 156(3) of
Cr.P.C., and directed the police to investigate and file a report. The police
after due investigation, submitted a closure report as Mistake of Facts.
Taking note of the report, the learned Judicial Magistrate closed the
complaint with liberty to the respondent to file a private complaint, if he is
so advised. This order was passed on 26.04.2011. After eight years, with
the same set of facts the respondent has filed a private complaint on
24.09.2019.
3. According to the petitioner, it is an abuse of process of
law that the trial Court without applying its mind has forced the respondent
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9973 of 2019
and Crl.M.P.No.5184 of 2019
to take private complaint. The learned counsel would submit that on the
earlier round of litigation, this Court vide order dated 03.10.2012 in
Crl.R.C.No.1755 of 2011 filed by the respondent challenging the order of
the learned Judicial Magistrate No.I, Mayiladuthurai, accepting the
referred charge sheet had given liberty to file a private complaint,
whereas, the respondent has approached this Court by way of revision to
interfere with the said order and pointed out that admittedly the transaction
is of the year 2011. There is no reason to interfere with the order passed
by the lower appellate Court. This observation and order was passed by
the this Court on 03.10.2012. The respondent has not immediately filed a
private complaint, but had incited his business partner Thyagarajan to give
a similar complaint to the police after that attempt got aborted, the present
complaint came to be filed on 04.09.2019.
4. The power of the High Court to quash the complaint
has to be sparingly exercised as indicated by the Hon'ble Supreme Court in
catena of Judgments. However, when the abuse of process is culpably
seen, there cannot be any hesitation to quash the complaint when it does
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9973 of 2019
and Crl.M.P.No.5184 of 2019
not meet the ends of justice. In the instant case under consideration, this
Court finds that allegations of breach of trust has been canvased before the
police as well as before the Magistrate Court, but the same was turned
down being bereft of merits. However, taking advantage of the observation
made by the learned Judicial Magistrate while closing the private
complaint as Mistake of Facts, the respondent wants to revive his
complaint after lapse of 6 years as pointed out by this Court in an earlier
complaint. The incident has occurred in the year 2006. The present
complaint is taken on file in the year 2018.
5. On reading the complaint, it is stated that there was
work contract agreement between the de facto complainant and the
petitioner between 1996 to 2001. In the business, it is alleged that a sum of
Rs.52,20,000/- due and payable towards the cost of gold, salary of the
workers and retainer remuneration sought even otherwise the deceptive,
inception and intention of cheating under Section 420 of I.P.C., is not
made out. Further, the earlier investigation and enquiry reveals that there is
no prima facie case of breach of trust or cheating made out. While so,
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9973 of 2019
and Crl.M.P.No.5184 of 2019
taking advantage of the observation made by the Court in the order passed
in the year 2011, the respondent cannot misuse the liberty after a lapse of
six years.
6. Looking at any angle, both lack of ingredient as well as
limitation and the principle of double jeopardize, the complaint lack
bonafide and merit. Hence, this Criminal Original Petition to quash is
allowed and the C.C.No.44 of 2019, on the file of the Judicial Magistrate
No.I, Mayiladuthurai is quashed. Consequently, the connected Criminal
Miscellaneous Petition is closed.
07.09.2022
Internet : Yes/No
Index: Yes/No
rpl
To
The Judicial Magistrate No.I, Mayiladuthurai.
Dr.G.JAYACHANDRAN, J.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9973 of 2019
and Crl.M.P.No.5184 of 2019
rpl
Crl.O.P.No.9973 of 2019
and
Crl.M.P.No.5184 of 2019
07.09.2022
https://www.mhc.tn.gov.in/judis
