G.R.Karthikeyan v. G.Rangaswamy
Case at a glance
Provisions considered
- Code of Criminal Procedure, 1973 ss. 200, 203
- Indian Penal Code, 1860 ss. 415, 417
- Constitution of India
Key paragraphs
- Para 1515. For the above said reasons, this Court do not find anyreason to interfere with the order passed by the learned Magistratedismissing the complaint and this revision petition is dismissed. Sd/- Asst. Registrar /True Copy/ Sub Asst. Registrar ksrTo1. The Judicial Magistrate No.VI, Coimbatore2. -do-…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 03.09.2009CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCriminal Revision Cases No. 96 of 2009G.R.KarthikeyanFounder Trustee ofP.S.Govindaswamy Naidu and Sons Charities ..Petitioner/ ComplainantVersusG.RangaswamyManaging Trustee ofP.S.Govindaswamy Naidu and Sons CharitiesAvinashi Road, Peelamedu, Coimbatore 641004 .. Respondent/ AccusedCriminal revision filed under Section 397 r/w 401 Cr.P.C againstthe order passed by the learned Judicial Magistrate VI, Coimbatore, in CMP.No.9856 of 2008 dated 27.11.2008 and consequently direct the Magistrate to take the complaint on file and proceed according withlaw. For petitioner: Mr.A.Ramesh, Senior Counsel for Mr.R.KarthikeyanFor respondent: Mr.S.Ashok Kumar, Senior Counsel for Mr.P.Maheshkumar.ORDERThe revision petitioner herein filed a private complaint under Section 200 Cr.P.C., against the respondent herein for an offenceunder Section 415 read with 417 of IPC. The learned JudicialMagistrate VI, Coimbatore, after recording sworn statement of thepetitioner, dismissed the complaint under Section 203 Cr.P.C.Aggrieved by the order passed by the learned Magistrate, the revisionpetitioner herein has preferred this criminal revision. https://hcservices.ecourts.gov.in/hcservices/
The gist of the complaint is that the complainant is one ofthe Founder Trustee of the P.S.Govindaswamy Naidu and Sons Charities,a public charity trust which was established in the year 1926 and ascheme of administration was framed by the Principal Sub Court, Coimbatore in O.S.No.145 of 1935 by its decree dated 29.02.1936.According to the complainant, the decree under Chapter VII has laiddown that the Board of Trustees are vested with the duty of themanagement of the property and funds of the trusts and shall havethe full control over the financial charges and that the board shallarrange for the maintenance of proper accounts for the annual andconcurrent monthly audit. The accused who is one of the FounderTrustees was elected on 14.11.2005. as Managing Trustee for a term offive years. In the meeting held on 14.11.2005, it was also resolvedto have an audit committee to discharge certain duties including theabove referred duties of the Board.
As the accused failed to adhereto the decision of the Board, the complainant along with two othertrustees issued a letter dated 27.11.2007 to the accused to call fora meeting of the Board with the subject for constituting an auditcommittee as per resolution dated 14.11.2005. The accused alsocalled for a meeting of the Board through a notice dated 17.12.2007and the meeting was to be held on 26.12.2007. In the meeting, TheAgenda contained the subject of constitution of Audit committee also. In the meeting held on 26.12.2007, it was resolved to constitute an Audit committee though the accused descended for the constitution ofan Audit Committee. It was also resolved to constitute an Auditcommittee and also frame the functions of the audit committee. Itwas further decided to convene the audit committee on the quarterlybasis and the first meeting was decided to convene in January, 2008.The accused sent a notice of meeting of the audit committee dated19.01.2008 informing that the meeting will be held on 23.01.2008 at10.00a.m., at the Managing Trustee office, Peelamedu, Coimbatore.
Subsequently, the accused sent a letter dated 22.01.2008 to allMembers of the Audit Committee informing that the Audit Committeemeeting scheduled to be held on 22.01.2003 is postponed to a latterdate as directed by the Court. According to the complainant, it is afalse information that the meeting was postponed as directed by the Court. By a false representation and by postponing the meeting, themembers of the audit committee were intentionally induced to omit todo their duties fixed by the Board on 26.12.2007 and thereby theaccused cheated the members of the committee . It is the furtherallegation of the complainant that the accused by making the auditcommittee defunct derived a wrongful gain by deriving uncheckedpowers and went to the extent of committing all the Institutions of Higher education under the Charities to the formation of a privatebody by unauthorisedly issuing a letter dated 06.02.2008 to the ChiefMinister of Tamil Nadu without any power to do so. https://hcservices.ecourts.gov.in/hcservices/
Mr.Ramesh, learned Senior Counsel submitted that the learnedMagistrate instead of seeing whether prima facie case is made out ornot, erred in going to the merits of the case and dismissing thecomplaint. The learned Senior Counsel further submitted that theaccused had dishonestly made a statement that the audit committeescheduled to be held on 23.01.2008 was being postponed to later date'as directed by the Court'. The letter forwarded by the accused didnot carry out any details about any Court order. The accused hadacted only with the dishonest intention of preventing the auditcommittee from conducting its inspection and it had caused damage tothe reputation of the Audit committee.
The learned Senior Counsel also relied on the decision of the Honourable Supreme Court reported in AIR 1999 SC 1216 (Rajesh Bajajvs. State NCT of New Delhi and others wherein it is observed asfollows: "It is not necessary that a complainant shouldverbatim reproduce in the body of his complaint all theingredients of the offence he is alleging. Nor is itnecessary that the complainant should state in so manywords that the intention of the accused was dishonest orfraudulent. Splitting up of the definition into differentcomponents of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled outin the complaint, is not the need at this stage. Iffactual foundation for the offence has been laid in thecomplaint the Court should not hasten to quash criminalproceedings during investigation stage merely on thepremise that one or two ingredients have not been statedwith details. For quashing and FIR (a step which ispermitted only in extremely rare cases) the information inthe complaint must be so bereft of even the basic factswhich are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (1992 AIR SCW 237)(supra) this Court laid down the premise on which the FIRcan be quashed in rare cases. The following observationsmade in the aforesaid decisions are a sound reminder (para109 of AIR):"We also give a note of caution to the effect that thepower of quashing a criminal proceeding should be exercisedvery sparingly and with circumspection and that too in therarest of rare cases; that the Court will not be justifiedin embarking upon an enquiry as to the reliability orgenuineness or otherwise of the allegations made in the FIRor the complaint and that the extraordinary or inherentpowers do not confer an arbitrary jurisdiction on the Courtto act according to its whim or caprice. " https://hcservices.ecourts.gov.in/hcservices/
The High Court seems to have adopted a strictlyhyper-technical approach and sieved the complaint through acullender of finest gauzes for testing the ingredientsunder Section 415 IPC. Such an endeavour may be justifiedduring trial, but certainly not during the stage ofinvestigation. At any rate, it is too premature a stagefor the High Court to step in and stall the investigationby declaring that it is a commercial transactionsimpliciter wherein no semblance of criminal offence isinvolved. "The learned Senior Counsel relying on the decision cited supra, submitted that in this case, as per the allegation made in thecomplaint, the ingredients of the offence under Section 415 IPC aremade out against the accused.5. Mr.S.AShok Kumar, learned Senior Counsel appearing for therespondent submitted that mere vexatious complaint has been filedagainst the accused by the complainant. The allegations made in thecomplaint do not constitute any criminal offence and even thoughresolution was passed by the Board on 22.06.2007 to constitute anaudit committee in spite of the opposition by the accused as statedin the complaint itself, the accused has filed a suit before the Court of District Munsif, Coimbatore in O.S.No.158 of 2008 with oneof the prayer as to declare that the minutes, the draft resolutionpassed by the Board on 26.07.2007 in respect of this subject as nulland void.
An interim application was also filed for consequentialinjunction and in the said application status quo was ordered andonly in pursuance of the said order, postponement notice was sent bythe accused. The learned Senior Counsel further submitted that eventaking the complaint and the sworn statement of the complainant as itis, it is not brought out by the complainant, as to how damage orharm was caused to the complainant.6. Mr.Ramesh, learned Senior Counsel submitted by way of replythat even if the status quo was ordered by the Civil Court, theaccused had no right to send the postponement notice, since the orderof status quo does not prevent the action of the Audit committee.7. This Court considered the submission made by both parties andperused the records.8. The complainant and the accused/ The Founder Trustees of theP.S.Govindaswamy Naidu and Sons Charities. The Board of Trusteesconsists of four founder trustees and five elected trustees.
According to the Court decree, the Managing Trustee must be electedby the Board of Trustees from the Founder Trustees. The accused ispresently the Managing Trustee of the Charities being elected on14.11.2005 by the Board of Trustees for the term of five years. It https://hcservices.ecourts.gov.in/hcservices/ appears that there is some dispute among the Trustees. The mainallegation in the complaint is that in the meeting held on26.12.2007, it was resolved to constitute an Audit Committee and itwas also decided to convene the meetings of the audit committee on aquarterly basis and first such meeting was decided to be convened in January, 2008. In pursuance of the said resolution, the accused whois a Managing Trustee sent a notice that the meeting is to be held on23.01.2008. But subsequently, the accused had sent another letter tothe Members of the Audit committee that the scheduled meeting hasbeen postponed 'as directed by the Court'.
According to thecomplainant, there was no direction by the Court for postponing themeeting and the accused had fraudulently acted and given a falseinformation and thereby cheated the members of the audit committee. Along with the complaint, the complainant had annexed a copy of thepostponement letter sent by the accused to the audit committeemembers. Of course in the said letter, no details about the Courtproceedings is given. As per the sworn statement of the complainant, the accused gave a false information. Now it is brought to thenotice of this Court that a suit has been filed by the accused beforethe District Munsif, Coimbatore, in O.S.No.155 of 2008 in which thecomplainant herein is the first defendant. In the interimapplication in I.A.No.189 of 2008 'to maintain the status quo' hasbeen ordered. The said order has been passed on 21.01.2008 and onthat day, one Advocate Mr.P.Sampath undertook to file vakalat onbehalf of defendants 1 to 4.
The complainant who is the firstdefendant has filed this complaint only on 12.11.2008. In the saidcomplaint, the complainant has not referred about the suit filed bythe accused and also about the interim order passed by the Court. Even in the sworn statement taken on 21.11.2008, the complainant hadonly stated no details were mentioned about any court proceedings inthe postponement letter sent by the accused.9. Even taking that the status quo ordered by the Court has beenmisinterpreted by the accused and a postponement letter has beensent, the point for consideration is whether the allegations made inthe complaint prima facie satisfy the ingredients of the offenceunder Section 415 IPC.10. Section 415 IPC is as follows: "S.415. Whoever, by deceiving any person, fraudulentlyor dishonestly induces the person so deceived to deliverany property to any person, or to consent that any personshall retain any property, or intentionally induces theperson so deceived to do or omit to do anything which hewould not do or omit if he were not so deceived, and whichact or omission causes or is likely to cause damage or harmto that person in body, mind, reputation or property, issaid to "cheat". https://hcservices.ecourts.gov.in/hcservices/ Explanation: A dishonest concealment of facts is adeception within the meaning of this Section.
The ingredients of the above Section are as follows:1. Deception of any person.2. (a) Fraudulently or dishonestly inducing thatperson. (i) to deliver any property to any person; or (ii)to consent any property to any person; or (b) intentionally inducing that person to do oromit to do anything which he would not do or omit ifhe were not so deceived, any which act or omissioncauses or is likely to cause damage or harm to thatperson in body, mind, reputation or property. 11. In the offence of Cheating, there are two elements –deception and dishonest inducement to do or omit to do something. Mere dishonesty is not a criminal offence. Moreover, to establish theoffence of cheating, the complainant must show not only that he wasinduced to do or omit to do a certain act but that this inducedomission on his part caused or was likely to cause him some harm ordamage in body, mind, reputation or property – which are presumed tobe the four cardinal assets of humanity.12. The facts alleged in the complaint do not reveal that theaccused made a willful misrepresentation of a definite fact withintend to defraud, i.e., the accused had willfully misrepresentedthat the meeting was postponed as per the direction of the Court andthat was with an intention to defraud.
Though it is alleged in the complaint that the damage wascaused to the reputation of charities and Trustees. It is not madeclear as to how the postponement of an audit committee meetingresulted in causing damage or harm to the reputation of the charitiesand Trustees. The damage must be direct, natural or probableconsequence of the induced act. The person deceived must have actedin the influence of the deceit and the damage must not be too remote. The loss and damage must be proximate result of the Act. To bring acase within sweep of Section 415 damage or harm caused or likely tobe done by the deceit practised or must be necessarily likely tofollow therefrom and law does not taken into account remotepossibilities that may flow from the act. 14. As a perusal of the complaint shows that the essentialingredients of the offences alleged are absent and the dispute isonly of Civil nature and this Court feels that it is waste of time toproceed further on the complaint and the learned Magistrate hasrightly dismissed the complaint under Section 203 Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/
For the above said reasons, this Court do not find anyreason to interfere with the order passed by the learned Magistratedismissing the complaint and this revision petition is dismissed. Sd/- Asst. Registrar /True Copy/ Sub Asst. Registrar ksrTo1. The Judicial Magistrate No.VI, Coimbatore2. -do- Through The Chief Judicial Magistrate, Coimbatore.1 cc to Mr.K.Kalyanasundaram, Advocate, SR 445571 cc to Mr.R.Karthikeyan, Advocage, SR 44322Pre-delivery order in Crl.R.C.No.96 of 2009CK (CO)RH (17.9.09)
Questions this judgment answers
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — ss. 200, 203; Indian Penal Code, 1860 — ss. 415, 417; Constitution of India.
Which court decided this case, and when?
Madras High Court, on 03 Sep 2009. The bench was T SUDANTHIRAMCRIMINAL REVISION.
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.