G. Venkatesh & Ors. v. Dr. S. Kalaikumar
Case at a glance
Provisions considered
- Indian Penal Code, 1860 ss. 406, 420
- Negotiable Instruments Act, 1881 s. 138
Key paragraphs
- Para 33. Learned counsel for the petitioner submits, at the firstinstance, that the prosecution is of purely civil in nature. He, ondisputing about liability alleged, submitted that for dishonour ofthe two cheques, two cases in C.C. Nos. 876 and 117 of 2008 have beenpreferred before the…
- Para 44. Per contra, learned counsel for the respondent / complainantsubmits that the 1st petitioner is the main person, who initiallyborrowed money from the defacto complainant by giving false promiseof repayment of money and in collusion and conspiracy with the 2ndaccused, executed documents for payment of…
- Para 88. Accordingly, the petition is ordered. Consequently, connectedMiscellaneous Petitions are also closed. ar Sd/- Asst. Registrar/True Copy/ Sub. Asst. RegistrarTo1. Judicial Magistrate No. VII, Coimbatore.2. -do-Through The Chief Judicial Magistrate coimbatore.+ 1 cc to Mr.R. Murali (SR.45203)RL(CO)Crl.O.P.No.967 of 2009RL(CO)EU 1.10.2009.
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.09.2009C O R A MTHE HONOURABLE Mr.JUSTICE R.REGUPATHICriminal Original Petition No.967 of 2009 and M.P. Nos. 1 & 3 of 20091. G. Venkatesh2. V.K. Subramanian.. Petitioners. VersusDr.S.Kalaikumar.. Respondent. Prayer: Criminal Original Petition filed under Section 482 of Criminal Procedure Code praying for a direction to call for therecords in C.C. No. 566 of 2008 on the file of the learned JudicialMagistrate No. VII, Coimbatore and quash the proceedings therein. For Petitioners :Mr.C.S. DhanasekaranFor Respondent :Mr.R. MuraliO R D E RA private complaint has been filed against three accused for anoffence punishable under Section 420 IPC. Learned Judicial MagistrateVII, Coimbatore examined eleven witnesses including defactocomplainant and has taken the case on file against A1 and A2. Thecase has been dropped against A3, who is wife of the 1st accused. Thepresent petition to quash the proceedings has been filed by A1 & A2against whom, the process has been issued. When the matter has beentaken up for enquiry, learned counsel for the petitioners made anendorsement that the petition against the 2nd petitioner may bewithdrawn and made his submissions for the 1st petitioner / accusedalone.
The case of the prosecution is that the defacto complainantwas running a finance business and the accused received loans onseveral occasions by promising that loans will be settled in duetime. It is alleged that the petitioners received such type of loansfrom 16 other persons and as against the defacto complainant, theliability of the 1st accused is Rs.10,50,000/-. It is further allegedthat the petitioners, accepting the liability, issued cheques forpayment of the same. However, the cheques were dishonoured and thedefacto complainant preferred proceedings under Section 138Negotiable Instrument Act. Since the petitioners made false promise https://hcservices.ecourts.gov.in/hcservices/ of payment of money and the cheque, issued by the petitioners gotbounced, a private complaint has been initiated before the learnedJudicial Magistrate.
Learned counsel for the petitioner submits, at the firstinstance, that the prosecution is of purely civil in nature. He, ondisputing about liability alleged, submitted that for dishonour ofthe two cheques, two cases in C.C. Nos. 876 and 117 of 2008 have beenpreferred before the learned Judicial Magistrate No. VI by thedefacto complainant, which is pending. The defacto complainant, subsequently, proceeded with a private complaint. Learned Magistrate, on perusal of the materials and statements of the witnesses recorded, has erroneously come to a conclusion that the 1st petitioner alongwith the 2nd petitioner is responsible for payment of money. The 2ndaccused has given a deed of undertaking, on behalf of the 1staccused / 1st petitioner also and under such circumstances, instead ofproceeding against the 2nd accused, learned Magistrate included the 1stpetitioner / A1 also as accused in the case.
Learned counsel for thepetitioner substantiated his contention by relying on a case lawreported in V.Y.Jose Vs. State of Gujarat (2009) 3 SCC 78 inparticular Para.28, wherein it is held as follows: "A matter which essentially involves dispute of acivil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not ashort cut of executing a decree which is non-existent. The superior courts, with a view tomaintain purity in the administration of justice, should not allow abuse of the process of court. Ithas a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings ofthe trial courts. "Learned counsel for the petitioner emphasised his submissions byquoting a case reported in Duraisami Vs. State of Tamil Nadu (2005)10 SCC 233 in Para.10 wherein it is observed as below: "The facts in the present case have to beappreciated in the light of the various decisions ofthis Court.
When somebody suffers injury to hisperson, property or reputation, he may have remediesboth under civil and criminal law. The injury allegedmay form the basis of civil claim and may alsoconstitute the ingredients of some crime punishableunder criminal law. When there is dispute between theparties arising out of a transaction involvingpassing of valuable properties between them, theaggrieved person may have a right to sue for damagesor compensation and at the same time, law permits thevictim to proceed against the wrongdoer for havingcommitted an offence of criminal breach of trust orcheating. Here the main offence alleged by theappellant is that the respondents committed the https://hcservices.ecourts.gov.in/hcservices/ offence under Section 420 IPC and the case of theappellant is that the respondents have cheated himand thereby dishonestly induced him to deliverproperty. To deceive is to induce a man to believethat a thing is true which is false and which theperson practising the deceit knows or believes to befalse.
It must also be shown that there existed afraudulent and dishonest intention at the time ofcommission of the offence. There is no allegationthat the respondents made any wilfulmisrepresentation. Even according to the appellant, the parties entered into a valid lease agreement andthe grievance of the appellant is that therespondents failed to discharge their contractualobligations. In the complaint, there is no allegationthat there was fraud or dishonest inducement on thepart of the respondents and thereby the respondentsparted with the property. It is trite law and commonsense that an honest man entering into a contract isdeemed to represent that he has the present intentionof carrying it out but if, having accepted thepecuniary advantage involved in the transaction, hefails to pay his debt, he does not necessarily evadethe debt by deception. " Learned counsel for the petitioner also made his submissions byrelying on a case reported in G.Sagar Suri Vs.
State of U.P (AIR 2000SC 754) in Para.14 wherein it is held as under: "A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending againstthe appellants and other accused. They would sufferthe consequences if offence under Section 138 isproved against them. In any case there is no occasionfor the complainant to prosecute the appellants under Sections 406/420, IPC and in his doing so it isclearly an abuse of the process of law andprosecution against the appellants for those offencesis liable to be quashed. "Therefore, learned counsel for the petitioner submitted that theproceedings pending against the petitioner/1st accused is an abuse ofthe process of court and seeks to quash the proceedings.
Per contra, learned counsel for the respondent / complainantsubmits that the 1st petitioner is the main person, who initiallyborrowed money from the defacto complainant by giving false promiseof repayment of money and in collusion and conspiracy with the 2ndaccused, executed documents for payment of money and failed suchpromise. This itself shows the dishonest intention, entertained bythe 1st petitioner and for such purpose, dishonour of cheques, issuedby the 1st petitioner also must be taken into account to substantiatedishonest intention of the 1st petitioner / A1. It is submitted that https://hcservices.ecourts.gov.in/hcservices/ 11 witnesses were examined by the learned Magistrate and has come toa conclusion that prima facie case is made out to constitute anoffence under Section 420 IPC. He further submitted by relying on ajudgement reported in State of Karnataka Vs. M. Devendrappa and Another (2002) 3 SCC 89 in Para.9 wherein it is held as follows: "As noted above, the powers possessed by the High Court under Section 482 of the Code are verywide and the very plenitude of the power requiresgreat caution in its exercise.
Court must be carefulto see that its decision in exercise of this power isbased on sound principles. The inherent power shouldnot be exercised to stifle a legitimate prosecution. The High Court being the highest court of a Stateshould normally refrain from giving a prima faciedecision in a case where the entire facts areincomplete and hazy, more so when the evidence hasnot been collected and produced before the Court andthe issues involved, whether factual or legal, are ofmagnitude and cannot be seen in their perspectivewithout sufficient material. Of course, on hard-and-fast rule can be laid down in regard to cases inwhich the High Court will exercise its extraordinaryjurisdiction of quashing the proceeding at any state. (See: Janata Dal Vs. H.S. Chowdhary3, and Raghubir Saran(Dr) Vs. State of Bihar4.)It would not be proper forthe High Court to analyse the case of the complainantin the light of all probabilities in order todetermine whether a conviction would be sustainableand on such premises arrive at a conclusion that theproceedings are to be quashed.
It would be erroneousto assess the material before it and conclude thatthe complaint cannot be proceeded with. In aproceeding instituted on complaint, exercise of theinherent powers to quash the proceedings is calledfor only in a case where the complaint does notdisclose any offence or is frivolous, vexatious oroppressive. If the allegations set out in thecomplaint do not constitute the offence of whichcognizance has been taken by the Magistrate, it isopen to the High Court to quash the same in exerciseof the inherent powers under Section 482 of the Code. It is not, however, necessary that there should bemeticulous analysis of the case before the trial tofind out whether the case would end in conviction oracquittal. The complaint has to be read as a whole. If it appears that on consideration of theallegations in the light of the statement made onoath of the complainant that the ingredients of theoffence or offences are disclosed and there is nomaterial to show that the complaint is mall fide, frivolous or vexatious, in that event there would beno justification for interference by the High Court. https://hcservices.ecourts.gov.in/hcservices/ When an information is lodged at the police stationand an offence is registered, then the mala fides ofthe informant would be of secondary importance. It isthe material collected during the investigationand evidence led in court which decides the fate ofthe accused person. The allegations of mala fidesagainst the informant are of no consequence andcannot by themselves be the basis for quashing theproceedings. "
Heard the submissions made on either side and perused thematerials available on record.
Learned Magistrate has passed an order dated 17/12/2008 afterexamination of the complainant and other witnesses in the privatecomplaint and taken cognizance of the case for an offence punishableunder Section 420 IPC against the petitioners A1 & A2. In the orderimpugned, it has been observed that the cheque issued by thepetitioners was dishonoured and the petitioners after receiving hugemoney, failed to repay the same, that though the 2nd accused has givenundertaking for payment of money, the petitioner also collided withthe 2nd accused and thereby prima facie materials made out toconstitute an offence under Section 420 IPC. I am unable to acceptsuch conclusion, reached by the learned Magistrate. Admittedly, liability, as against the petitioner / A1, is Rs.10,50,000/-. Twocases were initiated under Section 138 Negotiable Instruments Act andthe same is pending adjudication. Filing of a second case, a privatecomplaint on the same of set of facts and allegation for an offencepunishable under Section 420 IPC to get back the money in due will bean abuse of the process of court. The Honourable Supreme Court, timeand again, discouraged such practice of approaching the CriminalCourt for recovery of money due, stating that offence under Section420 is made out. Prima facie, it appears that the dispute is purelyof civil in nature. Dishonest intention on the part of thepetitioners could not be inferred at the inception having regard tothe facts and circumstance of the case. The case laws, relied on bythe counsel for the petitioners are squarely applicable to the factsand circumstances of the present case. In this view of the matter, allowing the proceedings to continue before trial court will be afutile exercise and abuse of the process of court. Under suchcircumstances, I am of the considered view that the proceedingspending against the 1st petitioner are liable to be quashed.
Hence, the case pending against the 1st petitioner / A1 in C.C.No. 566 of 2008 on the file of the learned Judicial Magistrate No.VII, Coimbatore is directed to be quashed and the case against the 2ndpetitioner / A2 may be proceeded in accordance with law by thelearned Judicial Magistrate, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/
Accordingly, the petition is ordered. Consequently, connectedMiscellaneous Petitions are also closed. ar Sd/- Asst. Registrar/True Copy/ Sub. Asst. RegistrarTo1. Judicial Magistrate No. VII, Coimbatore.2. -do-Through The Chief Judicial Magistrate coimbatore.+ 1 cc to Mr.R. Murali (SR.45203)RL(CO)Crl.O.P.No.967 of 2009RL(CO)EU 1.10.2009.
Questions this judgment answers
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — ss. 406, 420; Negotiable Instruments Act, 1881 — s. 138.
Which court decided this case, and when?
Madras High Court, on 08 Sep 2009.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.