A.Cogoulane v. Central Crime Branch, Team-II

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 29.04.2008Coram:-The Hon'ble Mr. Justice R.REGUPATHICrl.O.P. No.14870 of 2006A.Cogoulane... Petitioner (1st/Accused)vs.1. State by Inspector of Police,Central Crime Branch, Team-II,Egmore, Chennai.2. Dr.Thirumangai @ Nageswari ... RespondentsPetition under Section 482 of the Code of Criminal Procedure to callfor the records in Crime No.180 of 2006 on the file of the SubInspector of Police, Central Crime branch, Team-II, Chennai, and quashthe same. For petitioner: Mr.K.Subramanian, Senior Counsel forMr.M.Mohammed Shafi.For respondent-1: Mr.M.Babu Muthu Meeran,Additional Public ProsecutorFor respondent-2: Mr.C.H.Vinobha GandhiO R D E RThe petitioner is one of the accused for offences punishableunder Sections 406 and 420 IPC. in Crime No.180 of 2006, registered byR-1/CCB subsequent to the complaint preferred by R-2, the complainant.The complaint was entertained on 02.03.2006 and the investigation ofthe case was also taken up. The allegations made in the complaint areto the effect that the accused/petitioner, a French National living inFrance for sometime, was introduced to R-2/the complainant, a Doctor,through one Balaji. The complainant intended to produce a documentaryfilm regarding development of women in India and since she does notpossess experience in cine production, she approached the accused forassistance. The accused claimed himself a publisher at London and https://hcservices.ecourts.gov.in/hcservices/ thereby impressed upon the complainant and further, by showingphotographs and letters, he made her believe that he gained richexperience and exposure in cine field and also has friends in media &cine circle in London and France. He suggested that with the aid andassistance of a person by name London Balamurugan, a film could beproduced rather than documentary and told that the total expendituretherefor would be Rs.50 lakhs, out of which, Rs.25,00,000/- would becontributed by him. Accordingly, it was agreed to shoot a film by name'Sivan Arul'. The complainant paid a sum of Rs.25 lakhs towards hercontribution to make the film. Later, the accused stated that the film'Sivan Arul' may not be commercially successful and therefore, a filmby name 'Koothadi', may be produced, which would come out so successfulwith huge profit and that, for producing such film, the expenditurewould be around Rs.1 crore. The accused had shown three suit-cases andstated that the same contain Rs.50 lakhs sent by London Balamurugan anddemanded payment of Rs.25 lakhs more by the complainant. By pledgingher family house and raising loans, the complainant gave another sum ofRs.25 lakhs to the accused. On 5th October, 2005, after pooja, shootingof the film commenced. For the purpose of registering the productionwith Tamil Film Producers Council, the accused obtained signatures ofthe complainant in some Forms, however, subsequently, shooting was notproperly conducted and, when enquired with the accused, he gaveimproper replies, and on further enquiries, she came to know that thename of the complainant was not at all entered in the Tamil FilmProducers Council, shooting of the film has not been continued and thesaid London Balamurugan is fictitious person created by the accused todefraud and cheat her. Ultimately, the complainant lost Rs.50 lakhswith the accused, resulting in the complaint.2. Learned senior counsel for the petitioner submits that,prima facie, the offence alleged against the accused is not made out.Even accepting the allegations and averments available in the F.I.R. tobe true, at the most, the same would amount to breach of contract. Noplausible material has been furnished to substantiate the paymentsmade by the complainant to the accused. To constitute the offenceunder Sections 420 and 406 IPC., dishonest conversion of the amountgiven by the complainant must be substantiated and actually, there wasno intention for the petitioner to cheat the complainant. An agreementhas been entered into between the accused and the complainant andconveniently, there is no whisper about those details in the F.I.R. andthereby, it is quite apparent that material facts have been suppressed.At any rate, the film produced by the accused has been processed upto15600 ft. and the complainant has been shown as one of the producers;under such circumstances, the offence alleged is not made out. Insupport of his core contention that the F.I.R. is liable to be quashed,learned senior counsel relied on certain case laws and relevantportions referred to are quoted below:- https://hcservices.ecourts.gov.in/hcservices/ (A) AIR 1960 SC 866 (R.P.Kapur v. State of Punjab}"6. ... where the allegations in the FirstInformation Report or the complaint, even if they are takenat their face value and accepted in their entirety, do notconstitute the offence alleged; in such cases no question ofappreciating evidence arises; it is a matter merely oflooking at the complaint or the First Information Report todecide whether the offence alleged is disclosed or not. "(B) AIR 1973 SC 326 (State of Kerala v. A.P. Pillai)"16. ... To hold a person guilty of the offenceof cheating, it has to be shown that his intention wasdishonest at the time of making the promise. Such adishonest intention cannot be inferred from the mere factthat he could not subsequently fulfil the promise. "(C) AIR 1988 SC 709 (Madhavrao v. Sambhajirao)" 7. The legal position is well-settled that whena prosecution at the initial stage is asked to be quashed,the test to be applied by the Court is as to whether theuncontroverted allegations as made prima facie establishthe offence. It is also for the Court to take intoconsideration any special features which appear in aparticular case to consider whether it is expedient and inthe interest of justice to permit a prosecution tocontinue. This is so on the basis that the Court cannot beutilised for any oblique purpose and where in the opinionof the Court chances of an ultimate conviction are bleakand, therefore, no useful purpose is likely to be served byallowing a criminal prosecution to continue, the Court maywhile taking into consideration the special facts of a casealso quash the proceeding even though it may be at apreliminary stage. "(D) 2003 (3) SCC 11 (Ajay Mitra v. State of M.P.)" 16. A guilty intention is an essentialingredient of the offence of cheating. In other words,"mens rea" on the part of the accused must be establishedbefore he can be convicted of an offence of cheating. ... 17. ... unless the complaint showed that theaccused had dishonest or fraudulent intention at the timethe complainant parted with the money, it would not amountto an offence under Section 420 IPC and it may only amountto breach of contract. .... in order to constitute theoffence of cheating, the intention to deceive should be inexistence at the time when the inducement was offered. "3. Per contra, learned counsel for the complainant submitsthat the accused induced the complainant initially to part with Rs.25lakhs and at that time, the idea was to produce a film titled 'SivanArul' but subsequently, he made a representation that production of the https://hcservices.ecourts.gov.in/hcservices/ said film may not be commercially viable and instead, producing a filmnamed 'Koothadi' based on the story written by him would fetch immenseprofits. Subsequently, after shooting was commenced, he showed threesuit cases stating that the same contain Rs.50 lakhs given by LondonBalamurugan and that on the part of the complaint, balance of Rs.25lakhs must be given as otherwise, it would be impossible to completeproduction of the Film and only under such circumstances, secondinstalment of Rs.25 lakhs was made. To her shock and surprise, thecomplainant came to know that the person introduced by name LondonBalamurugan is a fictitious person and no such money viz., Rs.50 lakhs,has ever been paid by him. Though it was promised that the name of theproducer of the film would be the complainant, registration was notmade in her name with Tamil Film Producers Council. Further, theaccused/petitioner has created an image as if he is independentlyproducing the film and in the net result, the complainant, who madepayment of Rs.50 lakhs, has been cheated. The dishonest intentioncould be inferred from the conduct of the accused and on the face ofthe allegations made in the F.I.R., the offence alleged issubstantiated and therefore, the learned counsel submits that it is nota fit case to quash the proceedings. He also placed reliance on ajudgment of the Supreme Court reported in 2000 Crl.L.J. 1487(M/s.Medchl Chemicals & Pharma Pvt. Ltd. v. M/s.Biological E. Ltd.)wherein, it has been held as follows:-" 17. ... The ingredients of the offences underSections 415, 418 and 420 cannot be said to be totallyabsent on the basis of the allegations in the complaint.We however, hasten to add that whether or not theallegations in the complaint are otherwise correct has tobe decided on the basis of the evidence to be led at thetrial in the complaint case but simply because of the factthat there is a remedy provided for breach of contract,that does not by itself clothe the Court to come to aconclusion that civil remedy is the only remedy availableto the appellant herein. Both criminal law and civil lawremedy can be pursued in diverse situations. As a matterof fact "they are not mutually exclusive but clearly co-extensive and essentially differ in their content andconsequence. The object of criminal law is to punish anoffender who commits an offence against a person, propertyor the State for which the accused, on proof of theoffence, is deprived of his liberty and in some cases evenhis life. This does not, however, affect civil remediesat all for suing the wrongdoer in cases like arson,accidents etc. It is anathema to suppose that when acivil remedy is available, a criminal prosecution iscompletely barred. ..."4. Learned Additional Public Prosecutor submits that the https://hcservices.ecourts.gov.in/hcservices/ investigation of the case was taken up on 03.03.2006, the accused cameto be arrested, several incriminating documents have been recoveredfrom him, witnesses have been examined and investigation of the case isunder progress. Though bail application filed by the petitioner wasdismissed by the Sessions Court, subsequently, relief was granted bythe High Court on 22.03.2006. After release of the petitioner on bail,the present petition has been filed and thereby, the progress of theinvestigation is stalled. Moreover, prima facie materials are availableagainst the accused and that being so, this is not a fit case to quashthe proceedings at the initial stage. 5. I have perused the materials available on record includingthe F.I.R. On a careful perusal of the F.I.R., I find that prima faciematerials are available to constitute the offence alleged. Further,during the course of investigation, incriminating materials have beensecured to establish the complicity of the accused in the offencealleged. When investigation is at the initial stage and afterregistration of the F.I.R., certain incriminating materials have beencollected; before the investigating officer could conclude the processand come to a conclusion one way or the other, entertaining the presentpetition to quash the proceedings would not be a proper exercise.Repeatedly, the Supreme Court has discouraged such practice in umpteennumber of its judgments. In the peculiar facts and circumstances ofthe case, the investigation must be allowed to continue and reach itsfinal stage so as to arrive at a logical conclusion either way. In thedecision reported in 1992 Crl.L.J. 3450 (M/s.Jayant Vitamins Ltd., v.Chaitanyakumar), it has been categorically held that the investigationinto an offence is a statutory function of the police and thesuperintendence thereof is vested in the State Government and the Courtis not justified without any 'compelling and justifiable reason' tointerfere with the investigation. The observation of the Apex Court inRajesh Bajaj v. State NCT of Delhi and others (1992-2-L.W. (Crl.) 649)is very much relevant and the same is extracted below:-" 8. ..... For quashing an FIR (a step which is permittedonly in extremely rare cases) the information in the complaintmust be so bereft of even the basic facts which are absolutelynecessary for making out the offence. In State of Haryana vs.Bhajan Lal this court laid down the premise on which the FIRcan be quashed in rare cases. The following observations madein the aforesaid decisions are a sound reminder:" We also give a note of caution to the effectthat the power of quashing a criminal proceedingsshould be exercised very sparingly and withcircumspection and that too in the rarest of rarecases; that the court will not be justified inembarking upon an enquiry as to the reliability orgenuineness or otherwise of the allegations made in https://hcservices.ecourts.gov.in/hcservices/ the FIR or the complaint and that the extraordinary orinherent powers do not confer an arbitraryjurisdiction on the court to act according to its whimor caprice. "(emphasis supplied)Similarly in Trisuns Chemical Industry vs. Rajesh Agarwal (1999Crl.L.J. 4325), it has been held by the Apex Court that provisionincorporated in the agreement for referring the disputes to arbitrationis not an effective substitute for a criminal prosecution when thedisputed act is an offence of fraudulent representation and cheating.Admittedly, there is no wholesome denial of the transactionsbetween the parties, for, even according to the petitioner, thecomplainant has been shown as one of the producers and the filmproduced hitherto has been processed to a considerable extent. Theplea of the petitioner that the dispute involved is of civil nature ishardly a reason for holding that the offence of cheating would eludefrom such transaction. In the light of the factual situation involvedherein and taking note of the aforesaid decisions of the Apex Court,this Court is of the considered view that there is no compelling andjustifiable reason to interfere with the investigation and further theinformation available in the complaint is rather exhaustive andexplicit so as to make out the offence alleged against the petitionerherein. In other words, prima facie, the dishonest intention and theresultant act glaringly concur and thereby involvement of the accusedin the alleged offences could be presumed without much difficulty. Itfollows that the present petition cannot be entertained. Accordingly,the Criminal Original Petition is dismissed as devoid of merits.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarJI. https://hcservices.ecourts.gov.in/hcservices/ To1.The Inspector of Police, Central Crime Branch Team-II,Egmore, Chennai. 2. The Public Prosecutor, High Court, Chennai.+1cc to Mr.M.Mohammed Shafi, Advocate Sr 25318KLT (CO)km/12.5.Crl.O.P.No.14870 of 2006