Madras High Court

Dharmaraj vs The Inspector Of Police on 8 September, 2023

                                                                          Crl.O.P(MD).No.10983 of 2020

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    Dated : 08.09.2023

                                                             CORAM:

                                  THE HONOURABLE MR. JUSTICE P. DHANABAL
                                             Crl.O.P(MD).No.10983 of 2020
                                                         and
                                             Crl.M.P.(MD)No. 5009 of 2020


                 1. Dharmaraj
                 2. Kavin Newton                                               ...Petitioners

                                                        Vs

                 1. The Inspector of Police
                    District Crime Branch
                    Kanyakumari District

                 2. Bibiyana Elsimani                                          ...Respondents

                 PRAYER: Criminal Original Petition filed under Section 482 of the Code
                 of Criminal Procedure, praying this Court to call for the records in
                 relating to the First Information Report in Crime No. 5 of 2020 on the
                 file of the first respondent and quash the same.

                                  For Petitioners             : Mr.Eashwar
                                                                for Mr.C.Susikumar

                                  For R-1                     : Mr.R.M.Anbunithi
                                                                Additional Public Prosecutor

                                  For R-2                     : Mr.Niranjan S.Kumar




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

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                                                                     Crl.O.P(MD).No.10983 of 2020


                                                       ORDER

This Criminal Original Petition has been filed to quash the First

Information Report in Crime No.5 of 2020 on the file of the first

respondent police.

2. According to the petitioners based on the complaint given by

the second respondent the first respondent registered a case in Crime

No. 5 of 2020 for the offences under Sections 420 and 506(i)of IPC. The

case of the prosecution is that second respondent was employed in

Kuwait and now settled in India. While they were working in Kuwait

they purchased property in S.No.C-9/10-5 measuring 90.420 cents

situated at Puliyurkurichi village, Thakkalai, Kanyakumari District. The

above said property which was purchased was leased out to the first

petitioner and the first petitioner asked Rs.10,00,000/ from the second

respondent for the purpose her daughter’s marriage. Accordingly on

15.08.2018 the petitioners said to have borrowed Rs.10,00,000/- from

the second respondent by assuring that they will repay the amount

within two months by selling their vacant site. Inspite of repeated

demand made by the second respondent the petitioners have not paid

the above said amount and thereby on 17.06.2019 the second

respondent and her husband requested the petitioners to pay the said

amount for that the petitioners said to have threatened the second

respondent with dire consequences. These are all false allegations. https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.10983 of 2020

2.1. Infact the first petitioner is running a nursery garden for the

past 19 years . The wife of the first petitioner entered into a lease

agreement with the second respondent for a period of three years and

as per the terms and conditions the first petitioner has paid Rs.7000/-

rent per month. Thereafter the first petitioner made modification in the

property by spending expenses of Rs.24,39,600/-with the permission of

the second respondent and invested sum of Rs.80,00,000/- in the

nursery garden by obtaining proper license from the Government.

Thereafter periodically license was renewed upto 05.08.2019. In the

meantime the rent was increased by the second respondent and the

same was also regularly paid by the petitioners. Whileso due to

misunderstanding between the parties the second respondent insisted

the first petitioner to vacate the property prior to the lapse of lease

period. Hence the petitioners filed a suit in O.S. No.87 of 2019 on the

file of the District Munsif Court, Padmanabhapuram and the same is

pending. Whileso the second respondent came forward with the false

complaint stating that the petitioners borrowed a sum of Rs.10 lakhs.

There are civil dispute between the parties. Even in the First

Information Report the second respondent stated that already the first

complaint was lodged on 18.06.2019 and the same was closed. Even as

per the averment of the First Information Report the offences under

Sections 420 and 506(i) of IPC would not attract and the petitioner have

no intention to cheat the second respondent from the inception and

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Crl.O.P(MD).No.10983 of 2020

mere words are not sufficient to constitute the offence under Section

506(i) of IPC that too through phone. Therefore the pending First

Information Report is abuse of process of law and hence it is liable to be

quashed.

3. No counter was filed by the respondents.

4. The learned counsel for the petitioners would contend that

there is a civil dispute pending between the first petitioner and the

second respondent with regard to vacating the premises and the first

petitioner being a lessee is enjoying the property and there is a dispute

between them in vacating the property and thereby the petitioners filed

a suit in O.S. No.87 of 2019 on the file of the Principal District Munsif

Court, Padmanabhapuram. In order to wreck vengeance for the above

said civil suit the present complaint has been lodged with bald

allegations and even according to the First Information Report mere

threat as alleged by the petitioners alone is not sufficient to attract the

offence under Section 506(i) of IPC. Therefore inorder to settle civil

dispute the present complaint has been lodged and the same is clear

abuse of process of law. To support his contention he relied on the order

of this Court in the case of Suthakar and another .vs. the Inspector of

Police and another reported in (2022) 2 MLJ (Crl.)453

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Crl.O.P(MD).No.10983 of 2020

5. The learned counsel appearing for the second respondent

would contend that these petitioners borrowed money for a sum of Rs.

10 lakhs and thereafter failed to repay the same and when the same

was questioned by the second respondent he abused and also

threatened with dire consequences over phone. Thereafter the second

respondent gave complaint before the first respondent police and they

also registered First Information Report. Already voice recordings

were sent to Regional Forensic Laboratory and the same also revealed

that the petitioners threatened the defacto complainant and hence the

petitioners have to face the trial. To support his contention he relied on

the following judgments:

a) Rajeev kourav .vs. Baisahab and others in Criminal AppealNo.

232 of 2022

b)Sanjeet Jaiswal.vs. State of Uttar Pradesh and others reported

in 2022 Livelaw (SC) 594.

c)Shaalini and other.vs. State reported in 2021(3) MWN(Cr.)517

6. Heard both sides and perused the materials available on record.

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Crl.O.P(MD).No.10983 of 2020

7. On perusal of the record it is observed that already civil dispute

is pending between the parties with regard to vacating the premises

and civil dispute is also pending between the parties. In the meantime

this complaint has been lodged by the defacto complainant alleging that

the petitioners borrowed a sum of Rs.10,00,000/-and the same was not

returned by the petitioners. When the same was questioned by the

defacto complainant the petitioners herein threatened over phone.

Since there are civil dispute pending between the parties in respect of

land and borrowal of money and repayment of money are all civil in

nature. Hence the second respondent can seek remedy through civil

Court for recovery of money. In so far as offence under Section 420 of

IPC is concerned there is no averments that the petitioners had

intention to cheat the second respondent from the inception and since

there is a dispute pending between the parties with regard to vacating

the premises for money dispute, offence under Section 420 of IPC will

not attract. In so far as offence under Section 506(i) of IPC is concerned

the allegation is bald allegation and mere uttering of words over phone

is not sufficient to constitute the offence and the averments are that

they would fire the second respondent and her husband. Those words

alone are not sufficient to constitute the offence under Section 506(i) of

IPC. Therefore based on the above said vague allegations the

petitioners need not face the ordeal of trial, hence the pending First https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.10983 of 2020

Information Report in Crime No. 05 of 2020 on the file of the first

respondent is liable to be quashed.

8. The learned counsel appearing for the petitioner relied on the

order of this Court in the case of Suthakar and another .vs. the

Inspector of Police and another reported in (2022) 2 MLJ

(Crl.)453, wherein it is held as follows:

9. The condition necessary for an act to constitute an offence under Section 415 of IPC is that there was dishonest inducement by the accused. Cheating is an essential ingredient to an offence under Section 420 of IPC. The prosecution has to show that the accused was having dishonest intention even from the very beginning of the transaction.

10. Regarding the offence under Section 294(b) IPC, it is settled law that mere utterance of abusive/obscene words are not sufficient, but there must be a further proof to show that the same caused annoyance to the others. As rightly contented by the learned counsel for the petitioners, the second respondent has not even alleged that the incident was occurred at the public place and that the uttering of abusing words by the petitioners caused annoyance to the others.

......

14. In the present case, as rightly contented by the learned counsel for the petitioners, there is no allegation of entrustment of property. Moreover, it is not sufficient enough to show that the money has been retained by the accused, and the prosecution has to show that the accused dishonestly disposed of the same in some way or dishonestly retained the same. Even assuming for the sake of arguments that the accused are liable to pay the balance amount, as alleged by the second respondent, the same would not amount to criminal breach of trust. Even, if the averments in the complaint are https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.10983 of 2020

taken as true, the basic ingredients for dishonest, mis-appropriation and cheating and for dishonest intention of inducement are not made out.

15. As rightly contented by the learned counsel for the petitioners, the second respondent, by lodging the above complaint, has been attempting to convert the civil dispute into a criminal dispute. Hence, this Court is of the view that the complaint lodged by the second respondent constitutes an abuse of process of law and the same is liable to be quashed.

9. On a careful reading of the above said judgment it is clear that

the complaint lodged by the complainant should contain basic

ingredient to constitute the offence and attempt to conver the civil

dispute into criminal dispute through a complaint is abuse of process of

law and false complaint is liable to be quashed. In the case on hand also

there is no specific allegations to constitute the offence under Sections

420 and 506(ii) of IPC and the defacto complainant attempting to

conver the civil dispute into criminal dispute and filed the complaint

and thereby the said case law is squarely applicable to the present facts

of the case.

10. The learned counsel appearing for the second respondent

relied on the following decisions:

a) Rajeev kourav .vs. Baisahab and others in Criminal AppealNo. 232 of 2022, wherein it is held as follows:

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Crl.O.P(MD).No.10983 of 2020

It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.

b)Sanjeet Jaiswal.vs. State of Uttar Pradesh and others reported

in 2022 Livelaw (SC) 594, wherein it is held as follows:

7. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. (See Pratima (supra); Thom (supra); Rajiv (supra) and Niharika (supra). 7.1 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has allowed the petition under Section 482 Cr.P.C., we are of the opinion that the impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable. The High Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C. 7.2 It is also required to be noted that even the High Court itself has opined that the allegations are very serious and it requires further investigation and that is why the High Court has directed https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.10983 of 2020

to conduct the investigation by CB-CID with respect to the FIR No.227 of 2019. However, while directing the CB-CID to conduct further investigation/investigation, the High Court has restricted the scope of investigation. The High Court has not appreciated and considered the fact that both the FIRs namely FIR Nos.260 of 2018 and 227 of 2019 can be said to be interconnected and the allegations of a larger conspiracy are required to be investigated. It is alleged that the overall allegations are disappearance of the trucks transporting the beer/contraband goods which are subject to the rules and regulations of the Excise Department and Excise Law.

c)Shaalini and other.vs. State reported in 2021(3) MWN(Cr.)517, wherein it is held as follows:

It is well settled law that, whether or not the materials unearthed by the prosecution would prove the allegations made against the accused, cannot be decided by this Court, while exercising jurisdiction under Section 482 Cr.P.C. The allegations leveled against the accused are required to be proved or disproved before

https://www.mhc.tn.gov.in/judis Crl.O.P.No.7256 of 2017 the materials collected would not constitute any offence and therefore, entire final report can be quashed, cannot be applied mechanically in all cases. Every case has to be seen on its own facts and circumstances.

11. On a careful reading of the above said judgements it is clear

that if prima facie materials available then the case cannot be quashed

and whether or not materials unearthed by the prosecution would

prove the allegations made against the accused cannot be decided by

the Court while exercising jurisdiction under Section 482 of Cr.P.C. In

the case on hand no prima facie materials available and hte

complainant attempting to converth the civil dispute into criminal https://www.mhc.tn.gov.in/judis

Crl.O.P(MD).No.10983 of 2020

dispute thereby the said case laws will not be applicable to the present

facts of the case.

12. In view of the above discusssions and considering the facts

and circumstances of the case, this Criminal Original Petition stands