Madras High Court

R.Radhskrishnan vs The Inspector Of Police on 23 November, 2023

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                   Crl.O.P.Nos.24278 & 24280 of 2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 23.11.2023

                                                      CORAM:

                              THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                         Crl.O.P.Nos.24278 & 24280 of 2019
                                         Crl.M.P.Nos.12834 & 12840 of 2019

                      R.Radhskrishnan                                   ...Petitioner in Crl.O.P
                                                                           No.24278 of 2019

                      Ananthan                                          ...Petitioner in Crl.O.P
                                                                           No.24280 of 2019
                                                         Vs.

                      1. The Inspector of Police,
                         District Crime Branch,
                         Office of the District Crime Branch,
                         Namakkal.
                         (FIR No.36 of 2019)

                      2. R.Srinevasan                                   ... Respondents in
                                                                               both Crl.O.Ps.

                      Common Prayer: Criminal Original Petitions filed under Section 482 of
                      Code of Criminal Procedure, to call for the records pertaining to FIR
                      No.36 of 2019 dated 29.08.2019 pending investigation on the file of the
                      first respondent namely the Inspector of Police, District Crime Branch,
                      Namakkal District so as to quash the same.




https://www.mhc.tn.gov.in/judis
                      Page 1 of 10
                                                                        Crl.O.P.Nos.24278 & 24280 of 2019


                                        For Petitioner in
                                  Crl.O.P.No.24278 of 2019    : Mr.B.Natarajan
                                        For Petitioner in
                                  Crl.O.P.No.24280 of 2019    : Mr.S.Vinod

                                       For Respondents in
                                       both Crl.O.Ps.
                                                   For R1     : Mr.L.Baskaran
                                                                Government Advocate (Crl. Side)
                                                   For R2     : Mr.M.Deivanandam

                                                   COMMON ORDER

These petitions have been filed to quash the FIR No.36 of

2019 dated 29.08.2019 pending investigation on the file of the first

respondent, registered for the offences under Sections 120(B), 406, 418,

420, 506(1) of IPC, as against the petitioners.

2. The second respondent lodged complaint alleged that he is

working as Manager at M/s.Sea Trade Minerals Private Limited. They are

importing coal from abroad and selling the same to various companies in

Tamilnadu and other States. While being so, the third accused had

purchased coal from 30.12.2015 to 06.02.2016 to the tune of 1440.710

metric tons for the value of Rs.48,28,001/-. However, after purchasing of

the coal, the petitioners' company executed bond to the tune of

Rs.27,96,760.15. Though, they admitted their liability, they failed to pay

https://www.mhc.tn.gov.in/judis

Crl.O.P.Nos.24278 & 24280 of 2019

the entire amount. When it was questioned by the second respondent, the

accused persons threatened him with dire consequence. Hence, the

complaint. On receipt of the said complaint, the first respondent

registered a case in Crime No. 36 of 2019, for the offences under Sections

Sections 120(B), 406, 418, 420, 506(1) of IPC.

3. Heard the learned counsel appearing on either side and

perused the materials placed before this Court.

4. On perusal of the entire FIR revealed that, entire transactions

are commercial in nature between the petitioners and the second

respondent company. Admittedly the petitioners had purchased coal from

the second respondent company to the tune of Rs.48,28,001/-. Out of

which, after repayment, they had balance amount to be paid. Therefore,

all the allegations are civil in nature and the second respondent lodged the

present complaint by giving criminal colour for the entire commercial

transactions.

5. Further, the second respondent/defacto complainant has https://www.mhc.tn.gov.in/judis

Crl.O.P.Nos.24278 & 24280 of 2019

alleged in the complaint that the petitioners have committed offences

under Sections 406 and 420 of IPC. It would thus be necessary to

examine the ingredients of the above offences and whether the allegations

made in the complaint, read on their face, attract those offences under the

Penal Code. Section 405 of Penal Code reads thus:-

405. Criminal breach of trust — Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

A careful reading of Section 405 of IPC shows that the ingredients of a

criminal breach of trust are as follows:-

(i) A person should have been entrusted with property, or entrusted with dominion over property;

(ii) That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and

https://www.mhc.tn.gov.in/judis

Crl.O.P.Nos.24278 & 24280 of 2019

(iii) That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

Entrustment is an essential ingredient of the offence. A person who

dishonestly misappropriates property entrusted to them contrary to the

terms of an obligation imposed is liable for a criminal breach of trust and

is punished under Section 406 of the Penal Code.

6. It is relevant to extract the provisions under Section 420 of

the Penal Code as follows :-

420. Cheating and dishonestly inducing delivery of property — Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

https://www.mhc.tn.gov.in/judis

Crl.O.P.Nos.24278 & 24280 of 2019

The ingredients to constitute an offence under Section 420 of IPC are as

follows :-

(i) A person must commit the offence of cheating under Section 415 and

(ii) The person cheated must be dishonestly induced to (a) deliver property to any person or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.

Cheating is an essential ingredient for an act to constitute an offence

under Section 420.

7. It is relevant to rely upon the judgment made by the Hon'ble

Supreme Court of India in the case of M/s. Indian Oil Corporation Vs.

NEPC India Limited and others reported in (2006) 6 SCC 736, held that

the civil liability cannot be converted into criminal liability and it is

necessary to take notice of a growing tendency in business circle to

convert purely civil dispute in criminal case. This is obviously on account

of prevalent impression that civil law remedies are time consuming and

do not adequately protect the interest of lender/creditors. Such a tendency

is seen in several family disputes also, leading to irretrievable breakdown

https://www.mhc.tn.gov.in/judis

Crl.O.P.Nos.24278 & 24280 of 2019

of marriages/families. There is also an impression that if a person could

somehow be entangled in a criminal prosecution, there is a likelihood of

imminent settlement. Any effort to settle civil disputes and claim which

do not involve any criminal offence by applying pressure through

criminal prosecution should be deprecated and dishonoured.

8. In the case of G.Sagar Suri Vs. State of Uttar Pradesh

reported in 2000 (2) SCC 636, the Hon'ble Supreme Court of India held

as follows:-

“It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence, criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

9. That apart, the complaint was lodged only in the year 2019.

https://www.mhc.tn.gov.in/judis

Crl.O.P.Nos.24278 & 24280 of 2019

Whereas the occurrence had taken place in the year 2017. There is

absolutely no explanation for belated complaint. Therefore, it is clear that

in order to convert the civil dispute into criminal, the present complaint

has been lodged. Now the entire claim is barred and as such the second

respondent has attempted to give criminal colour for the commercial

transactions between the petitioners and the second respondent. Hence,

the present FIR cannot be sustained and it is liable to be quashed.

10. Accordingly, the impugned FIR in Crime No.36 of 2019

pending investigation on the file of the first respondent is hereby quashed