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2007 Supreme(Mad) 2857
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Vijayakanth
Versus
P. Mariammal
Crl.O.P.(MD).No.5590 of 2006 and M.P(MD)Nos.1 and 2 of 2006
Decided On : 06-09-2007
For the Petitioner:A. Shivaji, Advocate. For the Respondent:K. Vinayagam, Advocate.
The main legal point established in the judgment is the requirement of mens rea and incriminating evidence for establishing a prima facie case of cheating under Sections 420 and 406 I.P.C.
Headnote:
Cheating - Film Distribution Contract - Sections 420, 406 read with Section 34 I.P.C - [Sections 420, 406, 34 I.P.C] - The court analyzed the allegations of cheating under Sections 420 and 406 I.P.C in the context of a film distribution contract. It considered the mens rea element and the absence of incriminating evidence against the petitioner. The court referred to legal provisions and precedent to conclude that there was no prima facie case of cheating, quashing the prosecution against the petitioner.
Fact of the Case:
The case arose from a complaint alleging offences under Sections 420, 406 read with Section 34 I.P.C against the petitioner and another individual for their involvement in a film distribution contract.
Finding of the Court:
The court found that there was no prima facie case of cheating against the petitioner based on the absence of incriminating evidence and mens rea element. It quashed the prosecution against the petitioner while allowing the trial to proceed against the co-accused.
Issues: The key issues revolved around the petitioner's alleged involvement in the film distribution contract, the mens rea element for cheating under Sections 420 and 406 I.P.C, and the sufficiency of evidence in the complaint.
Ratio Decidendi: The court's decision was based on the absence of incriminating evidence and mens rea element required for cheating under Sections 420 and 406 I.P.C. It relied on legal provisions and precedent to reach its conclusion.
Final Decision: The court quashed the prosecution against the petitioner while allowing the trial to proceed against the co-accused.
This petition has been filed to call for the records in C.C.No.207 of 2006 on the file of the learned Judicial Magistrate No.II, Srivilliputtur and quash the same.
2. Heard both sides.
.3. The facts giving rise to the filing of this petition as stood exposited from the records could be portrayed and parodied thus:
.The case in C.C.No.207 of 2006 emerged on the file of the learned Judicial Magistrate No.II, Srivilliputtur, consequent upon the complaint lodged by Mariammal, the respondent/complainant through his power agent for the offences punishable under Sections 420, 406 read with Section 34 I.P.C as against A.1, L.K.Sudeesh and A.2, Vijayakanth, the petitioner herein.
.4. Being aggrieved by and dissatisfied with, the method and manner in which cognizance has been taken, the petitioner/A.2 has filed this petition on the main ground that he had nothing to do with the alleged contract or promise which allegedly emerged between A.1 and the complainant concerned; the Central Board of Film Certificate relating to the film "Narasimma would demonstrate that the applicant for obtaining such certificates, was one Ms.Captain Cine Creations and the Producer was L.K.Sudeesh; there was no promise at all by the petitioner to the respondent that in the event of the complainant incurring any loss in distributing the film Narasimma for screening in theatres, the petitioner would reimburse her and the ingredients of Section 420 I.P.C have not been made out as against the petitioner.
5. The learned Counsel for the petitioner would argue by drawing the attention of this Court to the photocopy of the certificate issued by the Central Board of Film Certification that the name of the petitioner is not found therein; over and above that initially the advocate notice dated 11.07.2003 issued by the Advocate Pachayappan on behalf of the complainant did not refer to the name of the petitioner herein or his alleged role in entrustment of the distributorship to the complaint.
6. Per contra, the learned Counsel for the respondent would deny and refute the allegations/averments made on the side of the petitioner and contend that M/s.Captain Cine Creations is a partnership firm composed of both the accused Nos.1 and 2 and in fact, the petitioner who happened to be the actor in that film also happened to be the producer virtually even though, in the Central Board of Film Certification, the name of L.K.Sudeesh is shown as producer and the said L.K.Sudeesh(A.1) is none but the brother-in-law of the petitioner herein.
.7. The learned Counsel for the petitioner would draw the attention of this Court to the paragraph No.3 of the complaint and it is extracted hereunder for ready reference:
.TAMIL
8. Placing reliance on the aforesaid extract, he would develop his argument that even though along with the first accused, the petitioner was not present at the time of Mariammal entrusting a sum of Rs.55,00,000/-(Rupees fifty five lakhs only) to A.1, yet over telephone, the petitioner subsequently confirmed to the arrangement and hence, in these circumstances, it cannot be stated that the petitioner had no mens rea to cheat the complainant.
.9. In this factual matrix, it has to be seen whether ex facie and prima facie the petitioner could be held to have had requisite mens rea in cheating the complainant so as to compel him to undergo the ordeal of trial?
10. At the earliest point of time, the complainant in the said notice dated 11.07.2003, made no whisper at all about the petitioner herein as the one who telephonically confirmed the alleged oral agreement entered into between the first accused and the complainant relating to reimbursement of the loss. To constitute an offence of cheating, at the time of promise, there should be mens rea to cheat and for which there should be at least sufficient averments in the complaint or in the earlier advocate notice, but it was not so.
.11. To the risk of repetition without being tautologous, I would hold th
