The main legal point established in the judgment is the requirement of fraudulent or dishonest intention at the time of making a promise or representation to establish the offence of cheating.

PRATIBHA RANI

1. The petitioner has filed this petition under Section 482 Cr.PC feeling aggrieved from the order dated 22.12.2011 passed by learned ASJ whereby the revision petition preferred by him against the order of learned MM dated 17.7.2009 was dismissed.

2. In brief, the case of the petitioner is that in the year 1996, he deposited Rs.55,000/-for one year in his name and in the names of his son and wife with M/s McDowell Krest Finance Limited. Subsequently, the name of the company was changed to M/s Krest Finlease Ltd.

3. The petitioner deposited a sum of Rs.30,000/-in his own name, Rs.15,000/-in the name of his son and Rs.10,000/-in the name of his wife in the year 1996. The interest accrued on the fixed deposit was assured to be 15.19% per annum. The fixed deposit was to mature in the year 1997. The FDR was forcibly renewed and retained despite repeated reminders. He contacted the Company Law Board to get back the money, however, vide letter dated 20.1.2004, it was informed that the company had gone into liquidation and an Official Liquidator (OL) has been appointed. He was advised to file a claim before the OL which was filed on 24.02.2004 but no payment has been made to him. On trying to get the information under RTI Act, he got reply that the ex Directors of the company have not handed over the assets of the company. He filed a complaint under Section 200 Cr.PC seeking directions under Section 156(3) Cr.PC for getting the FIR registered under Section 420, 406, 409 and 120B IPC. The said complaint was dismissed by learned MM vide order dated 17.7.2009 observing that neither cheating nor any breach of trust was made out.

4. The order passed by learned MM was impugned before the learned ASJ by filing a revision petition No.242/2009 against the company as well as its directors. Before learned ASJ also, the contention of the petitioner was that he deposited Rs.55,000/-in his own name and in the name of his wife and son for a fixed period of 5 years @ interest of 15.19 % per annum in the year 1996 but has failed to get back his money and that the FDR was renewed forcibly. The learned ASJ also came to the conclusion that the order by Ld.M.M dismissing the complaint impugned before him does not suffer from any legal infirmity. The reasoning given by learned ASJ in para 4 are extracted as under:

It is admitted fact that the amount was deposited by the revisionist herein in the year 1996 for the period of one year. The amount had to be matured in the year 1997. The complaint has been filed in the year 2009. It is the admitted fact that the revisionist had taken up his matter for refund before the official liquidator. The official liquidator had replied to the revisionist stating that at present there was no fund in the company to liquidate the liability of the revisionist. The company was wound up by the order of the Hon’ble Madras High Court passed on 3.7.2000 on an application of Canara Bank.

When the respondent no.1, the company, to which the deposit was made was wound up, then how the ingredient of cheating has been made out, this Court fails to understand. Cheating has been defined in section 415 IPC. It requires the deception of any person since beginning. Considering the circumstance when the company was wound up by the order of the Hon’ble Madras High Court, deception since beginning on the part of the director managing the company cannot be made out. The same reason is applied in respect of the offence under sections 406 and 420 IPC also. Learned MM has dealt extensibly every aspect as to why no offence has been made out in view of the facts and circumstances on record.”

5. The petitioner before this Court also submitted that during all these years, he had been corresponding with the Company Law Board and OL to get back his money. But on not being able to get back the amount invested by him with respondent no.1 company, he filed a complaint which disclosed commission of offence punishable under Sections 42