@JUDGMENTTAG-ORDER
R. Regupathi, J.@mdashA private complaint has been filed against three accused for an offence punishable u/s 420 IPC. Learned Judicial Magistrate VII, Coimbatore examined eleven witnesses including defacto complainant and has taken the case on file against A1 and A2. The case has been dropped against A3, who is wife of the 1st accused. The present petition to quash the proceedings has been filed by A1 & A2 against whom, the process has been issued. When the matter has been taken up for enquiry, learned Counsel for the petitioners made an endorsement that the petition against the 2nd petitioner may be withdrawn and made his submissions for the 1st petitioner/accused alone.
2. The case of the prosecution is that the defacto complainant was running a finance business and the accused received loans on several occasions by promising that loans will be settled in due time. It is alleged that the petitioners received such type of loans from 16 other persons and as against the defacto complainant, the liability of the 1st accused is Rs. 10,50,000/-. It is further alleged that the petitioners, accepting the liability, issued cheques for payment of the same. However, the cheques were dishonoured and the defacto complainant preferred proceedings u/s 138 Negotiable Instrument Act. Since the petitioners made false promise of payment of money and the cheque, issued by the petitioners got bounced, a private complaint has been initiated before the learned Judicial Magistrate.
3. Learned Counsel for the petitioner submits, at the first instance, that the prosecution is of purely civil in nature. He, on disputing about liability alleged, submitted that for dishonour of the two cheques, two cases in C.C. Nos. 876 and 117 of 2008 have been preferred before the learned Judicial Magistrate No. VI by the defacto complainant, which is pending. The defacto complainant, subsequently, proceeded with a private complaint. Learned Magistrate, on perusal of the materials and statements of the witnesses recorded, has erroneously come to a conclusion that the 1st petitioner along with the 2nd petitioner is responsible for payment of money. The 2nd accused has given a deed of undertaking, on behalf of the 1st accused/1st petitioner also and under such circumstances, instead of proceeding against the 2nd accused, learned Magistrate included the 1st petitioner/A1 also as accused in the case. Learned Counsel for the petitioner substantiated his contention by relying on a case law reported in
A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts.
Learned Counsel for the petitioner emphasised his submissions by quoting a case reported in Duraisami v. State of Tamil Nadu (2005) 10 SCC 233 in Para.10 wherein it is observed as below:
The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence u/s 420 IPC and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any wilful misrepresentation. Even according to the appellant, the parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.
Learned Counsel for the petitioner also made his submissions by relying on a case reported in
A criminal complaint u/s 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence u/s 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420, IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed.
Therefore, learned Counsel for the petitioner submitted that the proceedings pending against the petitioner/1st accused is an abuse of the process of court and seeks to quash the proceedings.
4. Per contra, learned Counsel for the respondent/complainant submits that the 1st petitioner is the main person, who initially borrowed money from the defacto complainant by giving false promise of repayment of money and in collusion and conspiracy with the 2nd accused, executed documents for payment of money and failed such promise. This itself shows the dishonest intention, entertained by the 1st petitioner and for such purpose, dishonour of cheques, issued by the 1st petitioner also must be taken into account to substantiate dishonest intention of the 1st petitioner/A1. It is submitted that 11 witnesses were examined by the learned Magistrate and has come to a conclusion that prima facie case is made out to constitute an offence u/s 420 IPC.
He further submitted by relying on a judgement reported in
As noted above, the powers possessed by the High Court u/s 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their perspective without sufficient material. Of course, on hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any state. (See: Janata Dal v. H.S. Chowdhary, and Raghubir Saran (Dr) v. State of Bihar.) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mall fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.
5. Heard the submissions made on either side and perused the materials available on record.
6. Learned Magistrate has passed an order dated 17/12/2008 after examination of the complainant and other witnesses in the private complaint and taken cognizance of the case for an offence punishable u/s 420 IPC against the petitioners A1 & A2. In the order impugned, it has been observed that the cheque issued by the petitioners was dishonoured and the petitioners after receiving huge money, failed to repay the same, that though the 2nd accused has given undertaking for payment of money, the petitioner also collided with the 2nd accused and thereby prima facie materials made out to constitute an offence u/s 420 IPC. I am unable to accept such conclusion, reached by the learned Magistrate. Admittedly, liability, as against the petitioner/A1, is Rs. 10,50,000/-. Two cases were initiated u/s 138 Negotiable Instruments Act and the same is pending adjudication. Filing of a second case, a private complaint on the same of set of facts and allegation for an offence punishable u/s 420 IPC to get back the money in due will be an abuse of the process of court. The Honourable Supreme Court, time and again, discouraged such practice of approaching the Criminal Court for recovery of money due, stating that offence u/s 420 is made out. Prima facie, it appears that the dispute is purely of civil in nature. Dishonest intention on the part of the petitioners could not be inferred at the inception having regard to the facts and circumstance of the case. The case laws, relied on by the counsel for the petitioners are squarely applicable to the facts and circumstances of the present case. In this view of the matter, allowing the proceedings to continue before trial court will be a futile exercise and abuse of the process of court. Under such circumstances, I am of the considered view that the proceedings pending against the 1st petitioner are liable to be quashed.
7. Hence, the case pending against the 1st petitioner/A1 in C.C. No. 566 of 2008 on the file of the learned Judicial Magistrate No. VII, Coimbatore is directed to be quashed and the case against the 2nd petitioner/A2 may be proceeded in accordance with law by the learned Judicial Magistrate, Coimbatore.
8. Accordingly, the petition is ordered. Consequently, connected Miscellaneous Petitions are also closed.
