To establish a offence under Section 420 of I. P. C. dishonest intention must be available with each accused from the inception.

1. The petitioner is A-2 among 6 accused in C.C. No. 90 of 2004 on the file of Judicial Magistrate No. 1, Tirupur, for offences punishable under Sections 120-B, 409 and 420 I.P.C. A-1, A-3 and A-6 are her husband, brother and father respectively while A-4 is a Partner of one of the Firms involved viz. Anu Yarns, and A-5 is the co-brother of A1.

2. The accused were running four Concerns in the name of Shanthi Mills (P) Limited, Uma Maheswari Textiles, Anu Yarns and G.P.K. Apparels. petitioner/A-2 is one of the partners of Shanthi Mills (P) Limited. It is the case of the prosecution that on behalf of the Firms, the accused approached the complainant for purchase of cotton yarn and there were regular transactions between the complainant and the accused and during 2001 - 2002, goods worth Rs.1,90,00,000/-have been supplied. Though Rs.1,30,00,000/- have been received by the complainant, there was an outstanding of Rs.66,35,215/-. In spite of repeated reminders, the accused failed to pay the balance amount, resulting in filling of a complaint before the respondent police. On completion of the investigation, final report came to be filed before learned Judicial Magistrate-I, Tirupur, whereupon, he took the case on his file as C.C No. 90 of 2004 for the offences punishable under Sections 120-B, 409 and 420 I.P.C. The petitioner who is the 2nd accused alone has preferred this petition to quash the proceedings.

3. Learned counsel for the petitioner, at the first instance, submits that though the petitioner happened to be a partner of Shanthi Mills Private Limited and wife of A-1, she was not at all in charge of the business conducted by A-1 and other accused and that a perusal of the materials available on record would go to show that the allegations against the petitioner, are not substantiated; hence, the proceedings pending against her may be quashed. He draws the attention of this Court to the complaint, wherein, after narrating the list of accused and the names of the firms, it is alleged as follows:-

“3. …

v) The above firms are being managed by the people cited supra. They are in charge of and are responsible for the company and for the conduct of the business of the companies. Hence they are responsible jointly and severally for all the deeds that were done for the company.” Pointing out the other allegations in the complaint to the effect that the accused made false representation knowing fully well it was false so as to induce the complainant to deliver the goods; that, but for their representation, the goods would not have been delivered to them; and that, after committing the offence, the accused who are close relatives, have vacated their usual place of residence and shifted elsewhere; learned counsel states that, with the above general allegations, the petitioner also has been unnecessarily roped in and that even if those allegations and averments are accepted as true, the ingredients of Sections 120-B, 409 and 420 I.P.C. have not been attracted to proceed against the petitioner herein. According to him, even the other accused who were in actual charge of the business affairs of the Firms at best could be proceeded against through civil Court. Referring to the Invoice dated 8.5.2001, wherein, it is mentioned thus:-

“Interest will be charged 24% on all overdue payments All disputes arising out of this transaction will be in the jurisdiction of Tirupur only. Our responsibility ceases absolutely as soon as the goods have our premises.”

he submitted that a perusal of the invoice and the transaction between the parties would clearly show that once the sale is effected, entrustment of the property ceases and the purchaser becomes the owner of the property. he added that, in such a civil transaction/sale, if the amount is not paid, claim could be raised before civil Court; that being so, without even filing a civil suit, directly a criminal complaint has been filed against the accused including the petitioner as well. T