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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Medekar Intisar Mohamed & Another – Appellant
Versus
The State Inspector of Police, Egmore & Another – Respondent
Crl.O.P.No. 29244 of 2017 & Crl.M.P.No. 16531 of 2017
Decided on : 29-11-2021
Indian Penal Code, 1860 – Section 406 and 420 – Criminal Procedure Code, 1973 -Section 482 - Negotiable Instruments Act Section – 138 - Offence of cheating - Suit for recovery of money - Cheating and fraud - Main contention of learned counsel for Petitioner is that in a commercial transaction, given a colour of criminal case, unnecessarily husband and wife have been implicated without even company being made an accused - Learned counsel further submitted that there were transaction between parties for many years in respect of supply of leather products - Only when there is some default in payment at later point of time due to loss in company both husband and wife have brought into criminal case - Contention of learned counsel appearing for petitioner is that absolutely there is no intention whatsoever to deceive Respondent/defacto complainant - Mere default committed on later part cannot constitute the offence under Section 420 I.P.C. Learned counsel further submitted that there is no fraudulent or dishonest intention on part of the Accused - Therefore, in absence of any culpable intention on part of accused keep their promise, the offence under Section 420 I.P.C. cannot be pressed into service - Therefore, mere breach of contract would not give rise to an offence of cheating, unless deception played by accused was present from very inception - Whether or not there was deception from inception cannot be seen, same can be seen only in evidence – Held, Apex Court has held that mere filing of suit for recovery of money and complaint filed under Section 138 of Negotiable Instruments Act itself is no ground to quash the proceedings in the complaints filed by Appellant herein and further held that though the contract is of civil nature, if there is an element of cheating and fraud, it is always open for a party in a contract, to prosecute the other side for the offences alleged - It is also indicated that six cheques have been issued on the promise of repayment, however the same was dishonoured - Thereafter, wife also assured and given other cheques - It is also alleged that the very supply itself were made on the promises and assurances by both the parties - In such a view of the matter, this Court is of view that at this stage quashing of FIR will not arise - In view of the same Criminal Original Petition is dismissed - Consequently connected Miscellaneous Petition is closed.
JUDGMENT :
(Prayer : Petition filed under Section 482 of Cr.P.C. to call for the records in FIR No.1656 of 2017 on the file of F2 Egmore Police Station, Chennai and quash the same.)
1. The above petition has been filed to quash the F.I.R No.1656 of 2017 on the file of F2 Egmore Police Station, Chennai, for the offences under Sections 406 and 420 of IPC.
2. The main contention of the learned counsel for the Petitioner is that in a commercial transaction, given a colour of criminal case, unnecessarily the husband and wife have been implicated without even the company being made an accused. The learned counsel further submitted that there were transaction between the parties for many years in respect of supply of leather products. Only when there is some default in payment at later point of time due to the loss in the company both the husband and wife have brought into the criminal case. Hence, the contention of the learned counsel appearing for the petitioner is that absolutely there is no intention whatsoever to deceive the 2nd Respondent/defacto complainant. Therefore, mere default committed on later part cannot constitute the offence under Section 420 I.P.C. Learned counsel further submitted that there is no fraudulent or dishonest intention on the part of the Accused. Therefore, in the absence of any culpable intention on the part of the accused keep their promise, the offence under Section 420 I.P.C. cannot be pressed into service. Therefore, mere breach of contract would not give rise to an offence of cheating, unless deception played by the accused was present from the very inception.
3. Learned counsel for the Petitioners further submitted that FIR itself registered after obtaining the direction from this Court. Though the cheques were dishonoured the defacto complainant not initiated any action under Section 138 of the Negotiable Instruments Act, that itself clearly indicate that there is only a breach of contract and there was no deception played by the accused. Whereas wife has also implicated in order to coerce the payment from the husband and the company has not made an accused. Therefore, the entire lodging of the FIR is not valid and cannot be proceeded in the absence of any intention on the part of the accused.
4. In support of his submissions, he relied upon the following judgments:
2. Inder Mohan Goswami & Ors vs. State of Uttaranchal and Ors. [(2007) 12 SCC 1]
3. Paramjeet Batra vs. State of Uttarkand and Ors [(2013) 11 SCC 673]
4. International Advanced Research Centre for Powder Metallurgy and New Materials and Ors. vs. Nimra Cerglass Technics Pvt. Ltd., [(2016) 1 SCC 348]
5. Ramesh Dahyalal Shah vs. State of Maharashtra and ors. [2017 SCC Online Bom 9322]
6. Rakesh P. Sheth & Ors. vs. State & Ors. [2018 (1) MLJ (Crl.) 215]
7. Singanamala Ramesh Babu vs. State and Ors [MANU/TN/5724/2020]
8. Duraisamy & another vs. The Inspector of Police DCB, Cuddalore [Crl.O.P.No.1128 of 2016 High Court Madras dated 07.06.2021]
9. S.M.S. Pharmaceuticals Ltd., vs. Neeta Bhalla and Ors. [AIR 2005 SC 3512]
10. Sabitha Ramamurthy and Ors. vs. R.B.S. Channabasavaradhaya [Crl.A.No.950 of 2006 Supreme Court of India dated 13.09.2006]
11. S.K.Alagh vs. State of U.P. And Ors. [AIR 2008 SC 1731]
12. Sharad Kumar Sanghi vs. Sangita Rane [(2015) 12 SCC 781]
13. S.K.Shukla vs. State of M.P. [MANU/MP/0272/2018]
14. I.Hemant Kumar Das and other vs. The State of Bihar [Criminal Miscellaneous No.905 of 2018 Patna High Court dated 21.08.2018]
15. Kashish Gupta and Ors. vs. City Public Prosecutor [MANU/TN/0659/2020]
16. K. Suresh vs. State and Ors. [2012(2) MLJ (Crl) 22]
5. Learned counsel appearing for the 2nd Respondent/Defacto Complainant mainly contended that only on the false representation made by the Petitioners herein the goods were supplied and though the earlier cheques were dishonoured, thereafter there was a representation once again, and again they issued cheques which were also di
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