IMPORTANT POINT
Mere breach of contract does not amount to cheating or criminal breach of trust unless there is clear evidence of fraudulent or dishonest intention at the time of the transaction.

ORDER :

R. Hemalatha, J.

[PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, 1973, to call for the records pertaining to the case in C.C.No.145 of 2020 on the file of the Judicial Magistrate Court No.IV, Thoothukudi and quash the same.]

Seeking to quash the final report in C.C.No.145 of 2020 on the file of the Judicial Magistrate Court No.IV, Thoothukudi, the present Criminal Original Petition is filed.

2. The case of the prosecution in a nutshell is as follows :

(i) One S. Murugan, who is the de facto complainant was running a business in the name and style of ‘M/s.Insoorya Express Cargo’ and is exporting goods from India to various countries. He died on 04.02.2019. The second respondent is his wife. The present petitioner (A1) is the wife of Balasubramani (A2). The second accused Balasubramani was running a business of export and import in the name and style of ‘Srimathre Global Impex and Logistrics (P) Ltd.’ The second accused Balasubramani approached the de facto complainant and requested the latter to export his goods. Accordingly, the goods were exported on various dates, for which, Invoices were raised from 20.08.2016 to 20.01.2017 through Air Freight and Sea Freight. The de facto complainant had also cleared central excise and customs for the second accused. The amount was paid by the second accused periodically from 2016. The second accused suddenly fell ill, as a result of which, he did not pay the balance amount of Rs.54,11,160/- which is due and liable to be paid by him to the de facto complainant.

(ii) According to the prosecution, the accused 1 and 2 with a dishonest intention utilized the said amount for the medical treatment of the second accused. When the de facto complainant requested them to re-pay the amount, they handed over the following cheques:

(iii) When the above cheques were presented by the de facto complainant, the same were returned for the reason ‘insufficient funds’. Thereafter, the de facto complainant went to the house of the accused and requested them to re-pay the amount. At that time, they threatened him with dire consequences.

(iv) Therefore, the de facto complainant lodged a complaint with the Sub-Inspector of Police, District Crime Branch, Thoothukudi on 30.07.2018, based on which, FIR in Crime No.16/2018 was registered by the Sub-Inspector of Police against the accused for the offences punishable under Sections 409, 415, 417, 418, 420 & 506(2) of IPC. After concluding investigation, the Sub-Inspector of Police filed a final report in C.C.No.145 of 2020 on the file of the Judicial Magistrate Court No.IV, Thoothukudi against the accused for the offences punishable under Sections 417, 420, 506(2), 120(b) and 406 of IPC. Sections were altered and alteration report was filed.

3. Mr. K. Suresh, learned counsel for the petitioner would contend that the present petitioner (A1) did not have any business transaction with the de facto complainant and that even if the entire final report is taken as true, no offence is made out against the present petitioner (A1). His further contention is that mere breach of contract cannot give rise to a criminal prosecution for cheating unless a fraudulent or dishonest intention is shown at the time of transaction i.e., when the offence is said to have been committed. In the instant case, even in the final report, the prosecution has stated that the second accused has been making payments periodically right from the year 2016 and subsequently, due to ill health, he did not pay the balance amount of Rs.54,11,160/-. The learned counsel for the petitioner, relying on the following decisions,

i. Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, reported in (2000) 4 SCC 168.

ii. Chandran Ratnasw