Madras High Court
J. Praveen vs The State Rep. By on 28 June, 2023
Crl OP Nos. 2734 & 5992 / 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Criminal Original Petition Nos. 2734 & 5992 of 2021
and
Crl.M.P. Nos. 1517 & 3914 of 2021
J. Praveen ... Petitioner in Crl.O.P. No. 2734 of 2021
Mrs. Ezhil Arul ... Petitioner in Crl.O.P. No. 5992 of 2021
Versus
1.The State rep. by,
Inspector of Police,
EDF – II, Team – IX – A,
Vepery, Chennai – 600 007.
2.K.S. Dhilip ... Respondent in both the petitions
COMMON PRAYER : Criminal Original Petition filed under Section 482
of the Criminal Procedure Code seeking to call for the records relating to
the final report in C.C. No. 3553 of 2020 on the file of the CCB / CBCID
Metropolitan Magistrate Court, Egmore, quash the same in as far as the
petitioner concerned.
For Petitioners : Mr. E.K. Kumaresan in
Crl.O.P.No. 2734 / 2021
Mr. Abdul Hameed, Senior Counsel
https://www.mhc.tn.gov.in/judis
Crl OP Nos. 2734 & 5992 / 2021
assisted by M/s.Arun Pradeesh, AAV
Partners in Crl.O.P.No. 5992 / 2021
For Respondents : Mr. A. Damodaran,
Additional Public Prosecutor for R1.
Mr. V. Raghavachari, Senior Counsel
for M/s.V. Srimathi for R2.
COMMON ORDER
These petitions are to quash the final report in C.C. No. 3553 of
2020 for the alleged offence under Sections 406, 420, 506(i) read with 34
read with 109 of the Indian Penal Code.
2.The allegations in the final report are that A1 and the defacto
complainant were known to each other and were friends; that A1
represented to the defacto complainant that he had mortgaged a property
and promised to execute the sale deed in respect of the said property in
favour of the defacto complainant; that believing the representation made
by A1, the defacto complainant paid a sum of Rs.1,82,86,000/- through
various modes to the first accused and to A2 and A3; that it is alleged that
A2 who is the friend of A1 had also made representation to the defacto
complainant and on his instructions, a portion of the amount namely
Rs.35,00,000/- was sent to a company in Hong Kong; that A3's husband
https://www.mhc.tn.gov.in/judis
Crl OP Nos. 2734 & 5992 / 2021
had given the account number of A3 to A2 (Petitioner in Crl.O.P. No.
2734 of 2021) and the defacto complainant's brother in USA had
transferred Rs.24,00,000/- to the account of A3 (Petitioner in
Crl.O.P.No.5992 of 2021).
3.Mr. Abdul Hameed, learned Senior Counsel for the petitioner in
Crl.O.P. No. 5992 of 2021 submitted that even according to the
prosecution A3 had nothing to do with the alleged transactions. No
representation was made by A3. The allegations even if accepted to be
true would show that A3's husband had given instructions to the defacto
complainant to credit an amount of Rs.24,00,000/- into the account of
A3. The further allegation is that A3's husband had given a document
making it appear that the defacto complainant's brother had business
transaction with A3's wife. Admittedly, in this case, A3 does not know
the defacto complainant or the other accused. She is a resident of
New york, USA. Since there is no deception practised by A3, she cannot
be held guilty of the offence of cheating or the other offence such as
criminal breach of trust etc., The learned Senior Counsel relied upon the
Judgment of the Honourable Supreme Court in Rekah Jain Vs. State of
Karnataka reported in 2022 SCC Online SC 585, the Judgment of this
https://www.mhc.tn.gov.in/judis
Crl OP Nos. 2734 & 5992 / 2021
Court in A.Yuvaraj Vs. State in Crl.O.P. No.4896 of 2021 dated
17.03.2023 and the Judgment of the Telengana High Court in Rajsheel
Reddy Mamidi Vs. Hanumantha Reddy Eigapuri in Criminal Petition
No.5755 of 2018 dated 02.08.2018 in support of his submissions that
unless there is any material to show that the petitioner had deceived the
defacto complainant, the petitioner cannot be held liable for the offence
under Section 420 of the Indian Penal Code merely because some
payments were credited to her accounts.
4.Mr. E.K. Kumaresan, learned counsel for the petitioner(A2) in
Crl.O.P. No. 2734 of 2021 submitted that it is the admitted case of the
prosecution that he is a friend of A1. There is absolutely no allegation
that he had gained wrongfully. The only allegation is that he had given
the account number of a private company in Hong Kong to the defacto
complainant. Since this was done at the instance of A1, the petitioner /
A2 cannot be made liable for the aforesaid offences.
5.Heard the learned Additional Public Prosecutor who submitted
that the matters have to be adjudicated only before the trial Court and
prayed for dismissal of these petitions.
https://www.mhc.tn.gov.in/judis
Crl OP Nos. 2734 & 5992 / 2021
6. Mr. V. Raghavachari, learned Senior Counsel for the second
respondent in both the petitions submitted that there are allegations in the
final report to suggest that the offence was committed by all the
petitioners who shared common intention and they have been charged for
the offence under Section 34 read with 420 of the Indian Penal Code.
The question as to whether they have shared the common intention or not
cannot be decided in this petition since there are materials in the final
report. Further, the learned Senior Counsel submitted that A3's husband
had given a false explanation during the course of investigation stating
that the defacto complainant's brother and A3's wife had business
transactions. It is only at the instance of A3's husband, money was
transferred to the account of A3. In view of the said explanation, it
cannot be said that A3 is innocent and prayed for dismissal of these
petitions.
7.This Court finds that admittedly, A1 and the defacto complainant
were friends and on his representation, the defacto complainant had
transferred money to various persons to the tune of Rs.1,82,86,000/-.
Out of the said sum, it is said that Rs.35,00,000/- was transferred to the
https://www.mhc.tn.gov.in/judis
Crl OP Nos. 2734 & 5992 / 2021
account of the company in Hong Kong at the instance of A2. It is further
alleged that A2, friend of A1 had also made false representations to the
defacto complainant. The question as to whether A2 is guilty of
deception has to be adjudicated only before the trial Court since there are
allegations that he too made false representation. Hence, this Court is not
inclined to entertain this petition filed by A2 in Crl.O.P. No. 2734 of
2021. However, it is open to the petitioner to raise all his points before
the trial Court.
8.As regards A3, it is seen that the admitted facts are that the A3's
husband is the friend of A2. At the instance of A3's husband, the defacto
complainant's brother had transferred money to A3. A3,
admittedly, is not known to either the other accused or the defacto
complainant. That apart, she had not made any false representation.
Even assuming that A3's husband had given A3's account number and
some amount had been credited to her account, she cannot be held liable
for deception. This Court had repeatedly held that in order to attract the
offence of cheating under Section 420 of the Indian Penal Code, the
person should have practised deception either by making false
representation or by concealing facts and induced the victim to part with
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Crl OP Nos. 2734 & 5992 / 2021
the property. In the instant case,the first ingredient of deception is absent
in so far as A3 is concerned. It can also not be said that she had aided
the other accused as admittedly she has nothing to do with either the
defacto complainant or the other accused. Further, the allegation of
deception and entrustment would not go together and hence, the offence
of Sections 406 & 420 of the Indian Penal Code are not made out. In
such circumstances, this Court is of the view that prosecution against A3
is unsustainable for the aforesaid reasons. Hence, this Court is inclined
to entertain the petition filed by A3 in Crl.O.P. No. 5992 of 2021.
9.Mr. V. Raghavachari, learned Senior Counsel for the second
respondent submitted that A3's husband ought to have been made as
accused. It is needless to say that if it appears from the evidence that
A3's husband had committed any offence, it is open to either the
prosecution or the defacto complainant to invoke Section 319 of the
Criminal procedure Code.
10.Accordingly, the Criminal Original Petition in Crl.O.P. No.
5992 of 2021 is allowed and the impugned proceedings in C.C. No. 3553
of 2020 on the file of the Metropolitan Magistrate Court for the
https://www.mhc.tn.gov.in/judis
Crl OP Nos. 2734 & 5992 / 2021
Exclusive trial of CCB(cheating) cases, Chennai and CBCID Metro Cases
is quashed against the petitioner / A3 and the Criminal Original Petiton in
Crl.O.P. No. 2734 of 2021 is dismissed. Consequently, the connected
miscellaneous petitions are closed.
28.06.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
SUNDER MOHAN, J
ay
To
1.The Inspector of Police,
EDF – II, Team – IX – A,
Vepery, Chennai – 600 007.
2.Metropolitan Magistrate Court for the
Exclusive trial of CCB(cheating) cases,
Chennai and CBCID Metro Cases,
Egmore, Chennai.
3.The Additional Public Prosecutor,
High Court of Madras,
Chennai.
Crl.O.P. No. 2734 & 5992 of 2021
and
Crl.M.P. Nos. 1517 & 3914 of 2021
https://www.mhc.tn.gov.in/judis
Crl OP Nos. 2734 & 5992 / 2021
Dated: 28.06.2023
https://www.mhc.tn.gov.in/judis
