Madras High Court
A.Inbaraj vs Dinakaran on 11 September, 2015
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.09.2015 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD)No.5877 of 2009 and M.P.(MD)No.1 of 2009 1.A.Inbaraj 2.Sambath 3.Selvin : Petitioners Versus Dinakaran : Respondent PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records relating to C.C.No.546 of 2008 on the file of Judicial Magistrate No.1, Dindigul and quash the same. !For Petitioners : Mr.T.Antony Arul Raj For Mr.G.R.Swaminathan ^For Respondent : Mr.S.C.Herold Singh :O R D E R
Heard both sides.
2. The petitioners have come forward with the present petition seeking to quash the proceedings in C.C.No.546 of 2008 on the file of learned Judicial Magistrate No.1, Dindigul, which was taken on file, pursuant to the case registered in Crime No.550 of 2007 for the offences punishable under Sections 406 and 420 IPC, stating that the defacto complainant has given a complaint on 10.07.2007 stating that on 10.07.2006 the petitioners came to his house and obtained signature in six blank cheques and two blank promissory notes under threat and the second petitioner herein has presented one of the cheques for encashment and it was returned as 'insufficient fund' and on 12.01.2007, he issued a statutory notice and after receipt of the summons only, the respondent herein lodged the complaint in question on 10.07.2007. It is further submitted that the second petitioner herein has also filed a private complaint in S.T.C.No.1446 of 2007 for the offence punishable under Section 138 of the Negotiable Instruments Act, which was ended in conviction before the learned Judicial Magistrate No.1, Tiruppur, against which, the respondent preferred an appeal in C.A.No.279 of 2008 before the learned Additional District and Sessions Judge -cum- Fast Track Court No.V, Coimbatore at Tiruppur, which was allowed and the conviction and sentence were set aside and the matter was remitted back to the Trial Court, where it was ended in acquittal on 09.06.2009.
3. The learned counsel would further submit that on the basis of the complaint given by the respondent on 10.07.2007, a case in Crime No.550 of 2007 has been registered for the offences punishable under Sections 406 and 420 IPC and after investigation, final report has been filed as mistake of fact, for which, the respondent herein has filed a protest application and on that basis only, a case has been taken on file for the offences punishable under Sections 406 and 420 IPC. Challenging the same, the petitioners are before this Court.
4. During arguments, the learned counsel for the petitioners would submit that the third petitioner herein is no more and he died during pendency of the proceedings and as such, the petition deserves to be dismissed as against the third petitioner herein.
5. The learned counsel would also contend that the complaint has been lodged only with a view to escape from the clutches of law to pay the legally enforceable debt. He would further submit that no explanation has been given for the delay in lodging the complaint. The further contention of the petitioners is that the ingredients of Sections 406 and 420 IPC have not been made out. The averment in the protest application itself shows that the ingredients are absent. Hence, the learned counsel prayed for quashing the proceedings in C.C.No.546 of 2008 on the file of Judicial Magistrate No.1, Dindigul.
6. In support of his contention, the learned counsel for the petitioners relied upon a decision of the Supreme Court in Indian Oil Corpn. v. NEPC India Ltd., [2006(6) SCC 736].
7. Resisting the same, the learned counsel for the respondent would submit that as soon as the occurrence is said to have taken place, the complaint has been given and the case has not been registered by the police and hence, he approached this Court by filing Crl.O.P.(MD)No.5744 of 2007 and on the basis of the direction issued by this Court only, case has been registered. He would further submit that the ingredients of the offences under Sections 406 and 420 IPC have been made out and hence, he prayed for dismissal.
8. I have considered the rival submissions made on both sides and perused the materials available on record in the form of typed-set of papers.
9. A perusal of the typed-set of papers would go to show that on 10.07.2006, the petitioners herein entered into the house of the respondent and made a criminal intimidation and obtained signatures in six blank cheques and two blank promissory notes also. Then only, the second petitioner has filled up the one cheque bearing No.604796 and presented the same before the bank concerned, which was returned as 'insufficient fund' and after receipt of the statutory notice from the petitioners, the complaint has been given by the respondent.
10. Now, the only point that has to be decided is whether the complaint has been given after receiving the summons from the second petitioner relating to S.T.C.No.1446 of 2007 on the file of learned Judicial Magistrate No.1, Tiruppur.
11. According to the learned counsel for the respondent, the respondent has given a complaint on the alleged date itself and since case has not been registered, he approached this Court by way of Crl.O.P.(MD)No.5744 of 2007 and on the basis of the direction given by this Court only, case has been registered. However, he has not filed any scrap of paper to show that on 10.07.2006 itself he has given a complaint. Furthermore, it is pertinent to note that as soon as the petitioners alleged to have taken away six blank cheques, the respondent has not given a letter to the bank for stop payment to the above said cheques. In such circumstances, the argument advanced by the learned counsel for the respondent that he has given a complaint on 10.07.2006 does not merit acceptance.
12. Furthermore, the private complaint under Section 138 of Negotiable Instruments Act has been filed by the second petitioner against the respondent, which was ended in conviction, against which, he preferred an appeal in C.A.No.279 of 2008 before the learned Additional District and Sessions Judge -cum- Fast Track Court No.V, Coimbatore at Tiruppur, which was allowed and the conviction and sentence were set aside and the matter was remitted back to the Trial Court, where it was ended in acquittal on 09.06.2009. Furthermore, on the basis of the direction issued by this Court in Crl.O.P.(MD)No.5744 of 2007, case has been registered on the complaint given by the respondent and after investigation, it was referred as mistake of fact. At this juncture, the respondent filed a protest application stating that the offence under Sections 406 and 420 IPC have been made out and on that basis, case has been taken on file for the offences under Sections 406 and 420 IPC.
13. At this juncture, it is appropriate to consider the decision relied upon by the petitioners' counsel in Indian Oil Corpn. v. NEPC India Ltd., [2006(6) SCC 736], wherein it was stated that what is meant by criminal breach of trust and what are the ingredients to be proved. In paragraph Nos.21 and 22 of the said judgment, the Supreme Court observed thus:
"21. We will next consider whether the allegations in the complaint make out a case of criminal breach of trust under Section 405 which is extracted below:
?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?.?
22. A careful reading of the section shows that a criminal breach of trust involves the following ingredients: (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (c) 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. The following are examples (which include the illustrations under Section 405) where there is ?entrustment?:
(i) An ?executor? of a will, with reference to the estate of the deceased bequeathed to legatees.
(ii) A ?guardian? with reference to a property of a minor or person of unsound mind.
(iii) A ?trustee? holding a property in trust, with reference to the beneficiary.
(iv) A ?warehouse keeper? with reference to the goods stored by a depositor.
(v) A carrier with reference to goods entrusted for transport belonging to the consignor/consignee.
(vi) A servant or agent with reference to the property of the master or principal.
(vii) A pledgee with reference to the goods pledged by the owner/borrower.
(viii) A debtor, with reference to a property held in trust on behalf of the creditor in whose favour he has executed a deed of pledge-cum-trust. (Under such a deed, the owner pledges his movable property, generally vehicle/machinery to the creditor, thereby delivering possession of the movable property to the creditor and the creditor in turn delivers back the pledged movable property to the debtor, to be held in trust and operated by the debtor.)"
14. Here, in the case on hand, there is no material before this Court to show the entrustment. Thus, the basic ingredients for entrustment of the cheque have been failed. In such circumstances, I am of the view that the ingredients of Section 406 IPC have not been prima facie made out.
15. At this juncture, it is useful to extract the ingredients of Section 420 IPC as under:
"Ingredients of section.- The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally inducted to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property - S.W.Palanitkar v. State of Bihar 2002 SCC (Cri) 129."
16. Therefore, it is clear that to make out a case under Section 420 IPC, there should be fraudulent or dishonest inducement of a person by deceiving him. But, here, in this case, there is no inducement. It is the case of the petitioners that they have entered the house and forcibly obtained signatures in six blank cheques and two blank promissory notes. As such, the ingredients of Section 420 IPC have not been prima facie made out. In such circumstances, I am of the view that no useful purpose would be served to get along with the trial, as it is only an abuse of process of Court.
17. In the result, the Criminal Original Petition is allowed and the proceedings in C.C.No.546 of 2008 on the file of learned Judicial Magistrate No.1, Dindigul is, hereby, quashed in respect of the first and second petitioners alone. In respect of the third petitioner herein, the petition is dismissed as abated. Consequently, the connected miscellaneous petition is closed.
To The Judicial Magistrate No.1, Dindigul.
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