Madras High Court
Rekha vs Abdul Wahaf on 30 September, 2010
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/09/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition (MD) No.7734 Of 2010 and M.P.(MD) Nos.1 and 2 of 2010 1. Rekha 2. Prakash Kumar .. Petitioners Vs. 1. Abdul Wahaf 2. Mohammed Ali (Power Agent of first respondent) .. Respondents Crl.O.P. under Section 482 Cr.P.C. for the relief as stated therein. !For Petitioners ... Mr.K.P.Narayanakumar ^For Respondents ... Mr.S.Palanivelayutham :ORDER
The petitioners have approached this Court with a prayer to call for the records pertaining to C.C.No.47 of 2010 on the file of the learned Chief Judicial Magistrate, Nagercoil and quash the same.
2. The petitioners have come forward with this Crl.O.P. to quash the said private complaint given by the respondents in C.C.No.47 of 2010 under Sections 190(1)(c) read with Section 200 Cr.P.C.
3. It is the case of the first respondent that himself and his father had chit transactions with the first petitioner and her deceased mother/Roselet Rani, from 01.05.1999 to 13.07.2000 and in toto paid Rs.1,20,670/- by calculating both of their transactions. Due to death of the father of the first respondent on 30.03.2001, the first respondent was unable to make the balance payment from 13.07.2000 to March 2001. Though the first respondent made an attempt to pay back the balance amount in the year 2001, the same was rejected by the petitioners by saying that the said transaction was concluded and the respondents were denied to pay the amount and the petitioners along with goondas threatened the respondents and chased them upto 1-1/2 kms. Even though, the respondents preferred a complaint before the Police Station, the Police failed to initiate action and so, the respondents earlier preferred a complaint before the learned Judicial Magistrate, Kuzhithurai, which was forwarded to District Crime Branch for enquiry and stated to have been referred to as "mistake of fact". Hence, the respondents have preferred the present private complaint before the learned Chief Judicial Magistrate, Nagercoil.
4. It is the contention of the petitioners that they have no nexus with the allegations mentioned in the private complaint. Originally, the first petitioner's mother nominated the father of the first respondent as a care-taker of her properties and he used to receive several thousands of Rupees as loan from her. After the demise of the first respondent's father, the mother of the first petitioner demanded back the amount from the first respondent, but he only failed to pay back the amount due to the death of his father and hence, the respondents have come forward with the private complaint. The allegations in the present complaint are only civil in nature and no action could be initiated against the petitioners. Since it is time barred, the amount cannot be legally recovered, and so indirectly, the respondents have filed the present private complaint to recover the amount. After investigation, the District Crime Branch, in respect of the earlier complaint, referred the case as 'mistake of fact', and the same was suppressed by the respondents before the trial Court. Further, the ingredients of Section 415 IPC are not made out and so, absolutely, there is no scope for taking cognizance of the offence under Section 420 IPC, as there is also no intention of cheating. It is further contended by the petitioners that with regard to the allegation of criminal intimidation, there is no evidence adduced by the respondents to prove the same. It is the further contention of the petitioners that the learned Chief Judicial Magistrate, Kanyakumari, at Nagercoil, while taking cognizance of the present private complaint, by order dated 6.5.2010 in Crl.M.P.No.748 of 2010, failed to analyse the earlier private complaint alleged to have been filed by the second respondent before the Judicial Magistrate, Kuzhithurai. in Crl.M.P.No.1085 of 2009, which has been stated to have been referred to as "mistake of fact" by the District Crime Branch on being forwarded for enquiry. Hence, the petitioners pray for quashing the private complaint filed by the respondents.
5. Heard the learned counsel for the petitioners and the learned counsel for the respondents.
6. The learned counsel for the petitioners contended that the first petitioner is the daughter of Roselet Rani and the second petitioner is the first petitioner's husband and to prove the same, their Marriage Certificate had been placed in Page No.1 of the typed set of papers filed along with the Crl.O.P. The learned counsel for the petitioners further submitted that already the second respondent gave a private complaint under Section 200 read with 156(3) of Cr.P.C. before the learned Judicial Magistrate No.I, Kuzhithurai and that has been forwarded to Police authority and it was referred to as "mistake of fact". The first petitioner/A.1 and her mother conducted the chit transactions and the father of the first respondent was one of the subscribers to those chit transactions. The chit transactions took place between 01.05.1999 and 13.07.2000. The father of the first respondent died subsequently. It is further submitted by the petitioners that in the year 2008, the first respondent demanded money, and that at that time there was no criminal intimidation by the petitioners and so, the case has been taken foisted against the petitioners.
7. The case has been taken on file against the first petitioner/A.1 for the offences registered under Sections 420 r/w. 506 (Part 1) IPC and against the second petitioner/A.2 only under Section 506 (Part 1) of I.P.C. The learned counsel for the petitioners submitted that there is no evidence to show that the petitioners received money from the public and did not repay the amount and hence, he submitted that the ingredients of Sections 420 and 506 IPC, are not made out, since the District Crime Branch referred the matter as "mistake of fact". Learned counsel for the petitioners relied upon the decision of the Supreme Court reported in 2005 SCC (Crl.) 190 (Poonam Chand Jain Vs. Fazru) and stated that the second application is not maintainable and hence, he prayed for quashing the private complaint.
8. The learned counsel for the respondents submitted that the second respondent paid 15 instalments, but it was not repaid back to him and the investigation is going on, and it is in premature stage and hence, he prayed for dismissal of this Crl.O.P.
9. Admittedly, the father of the first respondent is the subscriber of the chit conducted by the first petitioner and her mother Roselet Rani and they paid the amount from 01.05.1999 to 13.07.2000 and the total amount is Rs.1,27,670/-. The first respondent's father died on 30.03.2001, and after that, the first respondent was unable to pay the chit amounts and when the first respondent approached in the month of April 2001, at that time, the petitioners stated that the chit transactions had been closed and then they gave an undertaking that they will repay the amount. Since the first petitioner's mother Roselet Rani died, the first respondent demanded money and the first petitioner promised to repay the amount with interest till August 2008. On 15.09.2008, when the first respondent demanded the money, the petitioners threatened the respondent(s) and attempted to murder them and hence, the respondents have given a complaint. Admittedly, no criminal complaint had been given by them. It is pertinent to note that the respondents have given the private complaint earlier on 01.12.2008 and that has been referred to the District Crime Branch in Crl.M.P.No.1085 of 2009, which was referred to as "mistake of fact". Now, the respondents have come by way of second round of litigation by filing the present private complaint before the learned Chief Judicial Magistrate, Nagercoil. At the time of filing the second private complaint, the respondents have filed two documents, i.e. a pass-book relating to the payment of amounts of chit transactions and the complaint copy filed before the Superintendent of Police, Nagercoil, dated 16.9.2008.
10. It is pertinent to note that the first complaint was filed before the District Superintendent of Police, Kanyakumari, at Nagercoil, dated 16.9.2008, received on 17.09.2008 and in that complaint, it was stated that when the second respondent demanded money, the first petitioner refused to pay the money, which was evident from Page No.2 of the typed set of papers filed along with Crl.O.P., and in paragraph 6 of the said complaint, dated 16.9.2008, it is stated as follows:
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11. After the said complaint dated 16.9.2008, received on 17.9.2008, the second respondent has given another complaint before the learned Judicial Magistrate No.I, Kulithurai, which had been forwarded to the District Crime Branch, Economic Offences Wing, for enquiry and it was stated to have been referred to as "mistake of fact" and only after that, the present private complaint had been filed. Considering the same, it is clearly proved that there are alleged chit transactions between the mother of the first petitioner and the father of the first respondent and the petitioners have not taken any steps to pay the amounts and the respondents have also taken any due steps to recover the amounts then and there and as contended by the petitioners, since it had become time-barred transaction, the respondents have come forward with the present private complaint.
12. While perusing the order dated 6.5.2010 in Crl.M.P.No.748 of 2010, passed by the learned Chief Judicial Magistrate, Kanyakumari District at Nagercoil, while taking cognizance of the private complaint in respect of the alleged offences, observed in paragraphs Nos.5 and 6, that without obtaining any proper licence, the petitioners/accused have conducted the chit transactions and received the amounts and refused to repay the amounts and made criminal intimidation against the respondents/complainants. In paragraph No.6 therein, it was further observed that both the petitioners/accused, as husband and wife, received money from the public and did not return the same at their request and engaged the goondas and threatened the respondents/complainants. This is also evident from the present private complaint filed by the respondents. But, it is pertinent to note that except these respondents/complainants, no one has preferred any complaint against the petitioners.
13. At this juncture, it is appropriate to consider the decision of the Supreme Court relied upon by the learned counsel for the petitioners in the case of "Murari Lal Gupta Vs. Gopi Singh" reported in 2006 (2) SCC (Crl.) 430, in which, the Supreme Court held as follows:
"6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are only unwarranted. The complaint is an abuse of the process of the Court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 of Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 of Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with the respondent."
14. In the other decision relied on by the learned counsel for the petitioners, in the case of "Harmanpreet Singh Ahluwalia Vs. State of Punjab", reported in 2009 (7) SCC 712, it is held by the Apex Court as follows:
"24. Section 415 IPC defines cheating as under:
"415. Cheating.-- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'.
25. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
"(i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property; or
(iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do any thing which he would not do or omit."
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Penal Code is existence of an intention (sic a fraudulent or dishonest intention a the time) of making initial promise or existence thereof from the very beginning of formation of contract."
15. Except the allegation of the offence under Section 415 / 420 IPC, there is no other averment/allegation/evidence to show that the petitioners fraudulently and dishonestly induced the first respondent and his father to deliver or subscribe to the chit transactions. So far as constituting of the offence of chit transactions are concerned, the complainants are required to show that the accused had fraudulently and dishonestly induced/intended to act at the time of making the promise. In the present case, there is no averment or allegation made in regard to failure on the part of the petitioners/accused to keep their promise and in the absence of a culpable intention at the time of initial promise, no offence under Section 415 / 420 of IPC is made out. As per the dictum of the Supreme Court reported in 2009 (7) SCC 712 (cited supra), "cheating" defined under Section 415 IPC, is existence of an intention (sic a fraudulent or dishonest intention) of making initial promise or existence thereof, from the very beginning of formation of the contract.
16. At this juncture, it is appropriate to incorporate the averments in the earlier private complaint filed before the learned Judicial Magistrate No.I, Kuzhithurai, in which, in paragraphs 1 to 3, it is stated by the second respondent as follows:
"1. The accused was running a Finance Company and collected money in monthly instalments from parties and issued acknowledgement receipts duly signed by the accused and by Roselet mother of accused and Rajesh brother of the accused, on behalf of the accused.
2. I deposited Rs.1,20,670/- on behalf of my cousin Abdul Wahab S/o.Mydeen Khan, Edaikattu Vilai Veedu, M.M.Manzil, Verkilambi at Brite Manzil, Vettuvenni, Marthandam.
3. The total payment deposit is Rs.1,20,670/- with written acknowledgement receipt issued by the accused Rekha and others. The complainant is submitted the Xerox copies of the receipts."
17. The petitioners/accused were running chit transaction-business, but there is no averment that at the time of collecting the money, they had fraudulently and dishonestly induced the first respondent's father and made him to join in the chit transactions and made payments. So, I am of the opinion that the ingredients of Section 415 IPC, have not been, prima-facie, made out. Hence the offence under Section 420 is also not made out.
18. Learned counsel for the petitioners/accused submitted that the present complaint is a second private complaint, which has been filed on the same set of facts, and it is not maintainable under law and to substantiate the same, he relied upon the decision of the Supreme Court in the case of "Poonam Chand Jain Vs. Fazru", reported in 2005 SCC (Cri.) 190, in which, it is held by the Supreme Court as follows:
"9. As was observed in Mahes Chand vs. B.Janardhan Reddy (2003 (1) SCC 734 : 2003 SCC (Cri) 425) there is no statutory bar in filing a second complaint on the same facts. In a case, where a previous complaint is dismissed without assigning any reason, the Magistrate under Section 204 CrPC may take cognizance of an offence and issue process if there is sufficient ground for proceeding. But the second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings have been adduced. The second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further second complaint on the same facts would be entertained only in exceptional circumstances, namely, where previous order was passed on an incomplete record or on misunderstanding of the complaint or it was manifestly absurd or unjust.
10. At this juncture, it will be also necessary to take note of what this Court has said in Subramanium Sethuraman v. State of Maharashtra (2005 SCC (Cri) 242 : 2004 (6) Supreme 662). It was laid down in the said decision that it is impermissible for the Magistrate to reconsider this decision to issue process in the absence of any specific provision to recall such order.
11. In Adalat Prasad v. Rooplal Jindal (2004 (7) SCC 338 : 2004 SCC (Cri) 1927 : 2004 (7) Scale 137) this Court considered the view of the Court in K.M.Mathew v. State of Kerala (1992 (1) SCC 217 : 1992 SCC (Cri) 88) and held that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the Code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasad case {Adalat Prasad Vs. Rooplal Jindal (2004 (7) SCC 338 : 2004 SCC (Cri) 1927 : 2004 (7) Scale 137) } held: (SCC p.343, para 16):
"Therefore, we are of the opinion that the view of this Court in Mathew case (K.M.Mathew Vs. State of Kerala (1992 (1) SCC 217 : 1992 SCC (Cri) 88 ) ) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law."
12. From the above, it is clear that the larger Bench of this Court in Adalat Prasad case {Adalat Prasad Vs. Rooplal Jindal (2004 (7) SCC 338 : 2004 SCC (Cri) 1927 : 2004 (7) Scale 137 } did not accept the correctness of the law laid down by this Court in K.M.Mathew case (K.M.Mathew Vs. State of Kerala (1992 (1) SCC 217 : 1992 SCC (Cri) 88) ). "
19. As per the said decision reported in 2005 SCC (Cri) 190 (cited supra), if the order has been passed, the second complaint on the same facts would be entertained only in the exceptional cases, namely, where the previous order was passed on an incomplete record or on misunderstanding of the complaint or it was manifest, absurd or unjust.
20. In the present case, admittedly, either parties have not filed any document to show that the previous complaint filed before the learned Judicial Magistrate No.I, Kuzhithurai, was dismissed after full consideration. As per the version of the learned counsel for the respondents/complainants, the earlier complaint had been forwarded to the District Crime Branch, Economic Offences Wing, Kanyakumari (Nagercoil) and after investigation, it was referred to as "mistake of fact". Since the respondents wanted to collect the time-barred amount, they have given the complaints one after the other, viz., first they have given complaint before the Police Station, subsequently, before a private complaint before the learned Judicial Magistrate, Kuzhithurai, which was referred to as 'mistake of fact' and thereafter, the present second private complaint before the learned Chief Judicial Magistrate, Kanyakumari at Nagercoil, on the same set of fact. In such circumstances, I am of the view that the present second private complaint on the same set of facts, is not maintainable.
21. Furthermore, while considering the averments in the private complaint, it clearly shows the intention of the respondents that they wanted to give colour to it in the form of a civil dispute for an alleged crime by way of collecting time-barred amount. In such circumstances, I am of the opinion that the learned Chief Judicial Magistrate, Kanyakumari, at Nagercoil, by order dated 6.5.2010, in Crl.M.P.No.748 of 2010, has committed an error in taking cognizance of the offence under Section 420 IPC.
22. Insofar as the offence under Section 506 (Part 1) I.P.C. is concerned, it is worthwhile to quote the ingredients of Section 506 (Part 1) IPC:
"Section 506: Punishment for criminal intimidation.--Whoever, commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
23. Except the common witnesses, no witness had been shown to examine to prove as to whether the ingredients of the offence under Section 506 (Part 1) IPC had been made out or not. In the above said circumstances, I am of the view that in order to grab money from the petitioners/accused, the alleged second private complaint had been filed by the respondents/complainants. Hence, I am of the view that the ingredients of Section 506 (Pat 1) IPC are also not made out.
24. For all the reasons stated above, the alleged second private complaint filed by the respondents/complainant, is not maintainable, for all the alleged offences, against the petitioners/accused and the same is liable to be quashed and it is accordingly quashed and it is needless to say that the order of cognizance of the private complaint, passed by the learned Chief Judicial Magistrate, Kanyakumari, at Nagercoil, dated 6.5.2010, in Crl.M.P.No.748 of 2010, is set aside.
25. Accordingly:
(a) This Criminal Original Petition is allowed.
(b) The private complaint filed by the respondent(s) in C.C.No.47 of 2010 on the file of the learned Chief Judicial Magistrate, Kanyakumari, at Nagercoil, against the petitioner(s), is hereby quashed.
(c) Consequently, connected miscellaneous petitions are closed.
cse / cs To The Chief Judicial Magistrate, Kanyakumari, at Nagercoil.