Madras High Court
P.Thendral vs / on 23 August, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.21220 of 2019
and Crl.M.P.No.10988 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :17.08.2022
Pronounced on :23.08.2022
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.21220 of 2019
and
Crl.M.P.No.10988 of 2019
1.P.Thendral
2.B.Mullaivanam
3.R.Babu
4.P.Raja
5.N.Kalaivani .. Petitioners/
Accused 1 to 5
/versus/
1.The State,
rep.by Inspector of Police,
E4, Kalpakkam Police Station,
Pudupattinam Bazzar Street,
Kalpakkam,
Chennai 603 102. .. Respondent/
Complainant
Page No.1/11
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.21220 of 2019
and Crl.M.P.No.10988 of 2019
2.C.Valarmathi .. Respondents/Defacto
Complainant
Criminal Original Petition has been filed under Section 482 of Cr.P.C.,
to call for records and quash the charge sheet dated 17.02.2012 in C.C.No.75
of 2019 on the file of the Judicial Magistrate, Thirukalukundran.
For Petitioners :Mr.P.L.Narayanan
For Respondents :Mr.N.S.Suganthan,
Government Advocate (Crl.Side)
for R1
Mr.C.Chinnavyran for R2
--------
ORDER
This petition is to quash the charge sheet dated 17.02.2012 in C.C.No.75 of 2019 taken on the file of the Judicial Magistrate, Thirukalukundram.
Page No.2/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019
2. Gist of the final report is that the defacto complainant C.Valarmathi, W/o A.Chaleyvaganan, is an employee in MAPS at Kalpakkam Thermal Station. Her husband is employed in BSNL at Chennai. The first accused P.Thendral and the second accused B.Mullaivanam are the sisters of the defacto complainant. The third accused Babu is the husband of Mullaivanam. The fourth accused Raja is her brother and the fifth accused Kalaivani is the wife of Raja.
3. When the loan availed by her sister Thendral from HDFC bank became default and the house property mortgaged by her was likely to be brought for auction. To save the property of the first accused Thendral, all the other accused together requested the defacto complainant to lend money and they promised to pay it back with interest and stood guarantee for repayment. Believing them, she gave two blank cheques signed to clear the loan of Thendral with HDFC bank. Later, she came to know that a total sum of Page No.3/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 Rs.10,20,000/- has been withdrawn from her account on 17.02.2012 through these cheques.
4. However, the accused did not pay the interest as promised nor repaid the principal. When she approached them to repay the loan to meet out the education expenses of her children, they delayed the repayment. Once she went to the house of her brother Raja and questioned why they are not paying the interest and not discharging the loan. At that time, she was intimidated and again in the month of February 2013, when she went to the house of Mullaivanam, she also threatened and abused her. Thus, for two years after inducing her to give the blank cheques and appropriating Rs.10,20,000/-, they have not repaid the money borrowed. They have committed the offences of breach of trust, cheating, and use of offensive words and intimidation,since they had deceived the complaint with criminal intention.
5. This complaint which was registered in Crime No.15 of 2014 on 17.02.2012 on completion of investigation culminated in the final report and Page No.4/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 taken on file as C.C.No.75 of 2019. The prosecution has recorded the statement of Valarmathi, the defacto complainant,her husband Chaleyvaganan, Srinivasan and Natarajan, apart from these four witnesses Mr.Kalaiselvam, the Sub Inspector of Police and Mr.Sadhasivam, Sub- Inspector of Police had investigated the case and they were shown as L.W.5 and L.W.6.
6. The learned counsel appearing for the petitioners/accused submitted that admittedly, the defacto complainant and the accused persons 1, 2 and 4 are sisters and brother. The third accused is the husband of 2nd accused. The 5th accused is wife of the fourth accused. The defacto complainant lend her financial support, when the property of the first accused Thendral was brought to auction by HDFC bank. There was no intention to cheat her, but due to other family circumstances, they were not able to pay the money, when the defacto complainant demanded. They sought for time. However, without affording time , a criminal complaint was lodged, which forced the petitioners Page No.5/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 to seek for anticipatory bail.
7. The learned counsel appearing for the petitioners submitted that the matter is purely civil in nature and in fact, the defacto complainant has filed a suit against the accused persons and HDFC bank and obtained a money decree which will clearly show that the dispute is primarily civil in nature. To put pressure and extract money the criminal complaint has been lodged.
8. The learned counsel appearing for the defacto complainant submitted that the two blank cheques were given to the first accused to tie over her financial crisis and to save the property based on the assurance given by the other accused that they will discharge the debt on behalf of the first accused, two blank cheques signed without filling up the name of the drawee and the amount were handed over to the accused persons. They in turn filled HDFC name as drawee for Rs.10,20,000/- and withdrawn the money to clear the Page No.6/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 loan. However, for one year they did not pay any interest or principal. Realising that they have cheated her, the complaint was given.
9. On 31.03.2013, A3 and A4 gave a written undertaking to the police that they will discharge the loan within 3 months. After waiting for 3 months, since the accused were not forth coming to pay the money, the police registered C.S.R.No.58 of 2013. At that time, yet other accused gave an undertaking to pay the money and promised that the property of Thendral will be mortgaged and the fund will be raised to discharge her loan; the defacto complainant bonafidely gave all the original documents of the property. But after receiving all the original documents of the property A1 to A5 failed to pay the loan as promised.
10. In the said circumstances, the case has been registered and on completion of the investigation, final report filed. The pendency of the civil Page No.7/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 suit and the decree passed thereof, will not exonerate the accused persons, whose conduct prima facie indicates that they dishonestly induced the defacto complainant to pay sum of Rs.10,20,000/- with no intention of repaying it. Though the receipt of the money is admitted, till date the accused persons have not paid the money and in the criminal case. If the intention of deception is well found right from the inception, the trial can not be quashed. The statements of the witnesses indicates that the money given by the defacto complainant was used to clear the debt of Thendral. She is the beneficiary of the transaction. The other accused have stood guarantee for the repayment. If really these petitioners had no intention to cheat the defacto complainant, to show their bona fide they would have made some payment by these years.
11. Having admitted the receipt of the money from the defacto complainant and refusal to repay it without any valid reason, on the face of it, gives ingredient necessary for the offence of cheating. The criminal intent to cheat has to be inferred from the conduct. Even if the lender and the borrower Page No.8/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 are blood relatives, while money received at the time of crisis, if not paid or no attempt made to repay, then the intention to cheat has to be presumed. Because they are brothers and sisters, it cannot be presumed that there was no intention to cheat. Similarly, the decree in the civil suit will also not take away the culpability if the intention to cheat is made out. In this case, after investigation, the police has found prima facie material to lay the charge sheet. The statements recorded in the course of the investigation, if proved the conviction of the petitioners are certain.
12. In the said circumstances, this Court finds that pendency of the civil suit cannot be a bar for the proceeding of the criminal trial. Hence, this Criminal Original Petition is dismissed. The trial Court is directed to take up the trial and dispose of the case within a period of 6 months from today. Consequently, connected Miscellaneous Petition is closed.
23.08.2022 Page No.9/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 Index:yes/no Internet:yes/no Speaking order/non speaking order ari To
1.The Judicial Magistrate, Thirukalukundram
2. The Inspector of Police, E4, Kalpakkam Police Station, Pudupattinam Bazzar Street, Kalpakkam, Chennai.
3.The Public Prosecutor, HighCourt, Madras.
Dr.G.JAYACHANDRAN,J.
ari Delivery order made in Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 Page No.10/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.21220 of 2019 and Crl.M.P.No.10988 of 2019 23.08.2022 Page No.11/11 https://www.mhc.tn.gov.in/judis