Madras High Court

V.Ayalraj vs State Represented By on 2 April, 2025

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                                             Crl.OP.No.2742 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                          DATED            :           02.04.2025

                                                            CORAM:


                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.O.P.No.2742 of 2023
                                                         and
                                           Crl.MP.Nos.1627 and 1629 of 2023

                     1. V.Ayalraj
                     2. Karthikeyan                                                       ... Petitioners

                                                                 Vs.
                     1. State Represented by
                        The Inspector of Police,
                        K8 Arumbakkam Police Station,
                        Chennai.
                     2. Sendil Kumar                                                      ... Respondents.

                     PRAYER: Criminal Original Petition is filed under Section 482 of the
                     Code of Criminal Procedure, to quash the proceedings in C.C.No.12627
                     of 2022 on the file of the Metropolitan Magistrate Court -V, Egmore,
                     Chennai.
                                     For Petitioners        : Mr.P.Sesubalanraja
                                     For Respondents        : Ms.R.Vinothraja
                                                               Government Advocate (Crl.Side)
                                                               for R1
                                                             : No appearance for R2



                     1/13




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                                                                                             Crl.OP.No.2742 of 2023

                                                                ORDER

This petition has been filed to quash the proceedings in

C.C.No.12627 on the file of the learned Judicial Magistrate-V,

Egmore,Chennai.

2. The case of the prosecution is that the petitioners had borrowed

a sum of Rs.46,50,000/- from the second respondent in the year 2015.

However,when the second respondent asked for repayment of the

amount, the petitioners have trespassed into the house and threatened

him with dire consequence.

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

registered an FIR in Cr.NNo.1297 of 2017 for the offence under

Sections 294b, 323, 448 and 506(ii)of IPC. After recording the

statements from the second respondent, the offences have been altered

into Sections 406 and 420 of IPC. Accordingly, the first respondent filed

final report before the Metropolitan Magistrate Court-V, Egmore and the

same has been taken cognizance by the trial court in C.C.No.12627 of

2022.

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4. The learned counsel appearing for the petitioners submits that

on 13.10.2017, the second respondent has filed a complaint as if on

10.10.2017 at about 07.00 p.m two unknown persons have entered into

his house and threatened him with dire consequence. Subsequently, the

second respondent made statement that after borrowal of the amount, the

petitioners did not repay the said loan amount and as such he lodged

complaint as if they came to house and threatened him with dire

consequence. On recording the said statement, the first respondent has

altered the offence into Sections 406 and 420 of IPC. Infact the

petitioners have lodged a complaint as against the second respondent on

11.10.2017. The said occurrence took place on 10.10.2017 alleging that

the second respondent trespassed into the petitioners' house at about

11.00 p.m and also threatened the entire family members with dire

consequence. He also scolded them with filthy language. Therefore,

immediately,the petitioners called police emergency '' 100''. Even before

arrival of police personnel, they flew away.

5. The learned counsel further submits that under compulsion and

coercion the second respondent also received cheques from the

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petitioners. Therefore, there is absolutely no ingredients to attract the

offence under Sections 406 and 420 IPC. Even according to the second

respondent, the petitioners borrowed certain amount and failed to repay

the said amount. Therefore, it is only loan transaction.

6. The learned Government Advocate (Crl.Side) appearing for the

first respondent police submitted that when the second respondent asked

for repayment of the loan amount, the petitioners have trespassed into the

house and threatened him with dire consequence.

7. Though notice was served on the second respondent and his

name also printed in the cause-list, no one appeared before this Court

either in person or through counsel.

8. Heard the learned counsel appearing for the petitioners and the

learned Government Advocate (Crl.Side) appearing for the first

respondent police and perused the materials available on record.

9. The defacto complainant has 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

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face, attract those offences under the Indian Penal Code. Section 405 of

IPC 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

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

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property or willfully suffer any other person to do so; and

(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 IPC.

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

IPC, which reads 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

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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.

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 IPC.

11. It is relevant to rely upon the judgment made by the

Honourable 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, wherein, it has been held that the civil liability cannot be

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converted into criminal liability and it is necessary to take notice of a

growing tendency in business circle to convert purely civil dispute into

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 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.

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

reported in 2000 (2) SCC 636, the Honourable 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

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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.”

13. It is relevant to rely upon the land mark Judgment of the

Hon'ble Supreme Court of India in the case of State of Haryana and

others Vs. Bhajanlal and others reported in 1992 Supp (1) SCC 335, in

which, the Hon'ble Supreme Court of India has laid down the following

categories of instances wherein inherent powers can be exercised in

order to secure the ends of justice, which are as follows:-

“(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable

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offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)

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to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

14. It has to see that, whether a matter which is essentially of a

civil nature has been given a cloak of a criminal offence. Where the

ingredients required to constitute a criminal offence are not made out

from a bare reading of the complaint, the continuation of the criminal

proceeding will constitute an abuse of the process of the Court. In the

present case, the averments in the complaint, read on its face, do not

disclose the ingredients necessary to constitute offences under the Penal

Code. An attempt has been made by the respondent to cloak a civil

dispute with a criminal nature despite the absence of the ingredients

necessary to constitute a criminal offence. The complaint filed by the

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second respondent against the petitioners constitutes an abuse of process