Criminal proceedings cannot arise from civil disputes unless fraudulent intent exists from inception; failure to fulfill a contractual promise does not constitute cheating.

ORDER

Dated : 30th March, 2021

1.This petition has been filed under Sec.482 Cr.P.C to quash the entire proceedings in C.C.1413/2014 on the file of Judicial Magistrate of First Class-I, Perumbavoor.

2.C.C.1413/2014 has been taken on file by the learned Magistrate upon a private complaint filed by the 1st respondent. After taking sworn statement of the complainant and perusing the complaint and documents, the learned Magistrate taken on file the case under Secs. 403, 420, 409, 418 120B and 34 IPC . Bailable warrant was issued to the 1st accused and summons was issued to accused Nos.2 to 5. Against which the petitioners/accused came up before this Court.

3.Heard both sides. Lower Court Records were called for and perused.

4.According to the petitioners the entire allegation in Ext.P1 complaint is based upon the financial transaction in between the petitioners and the 1st respondent. The allegation in the complaint is that they have induced the 1st respondent to enter into a partnership deed and to part with huge amount promising to conduct gold business in Madagascar. But did not act in accordance with the agreement, thereby cheated the 1st respondent. According to them, even if the entire allegations in the complaint are admitted, it would only disclose some civil dispute and the attempt of the 1st respondent is to resort to a short cut method and thereby pressurize the petitioners to settle the civil dispute and claims. It is also their contention that there is specific clause in the partnership agreement to invoke the arbitration clause in case of dispute. The petitioners already started gold business in Madagascar and the whole transactions are properly accounted and the 1st respondent is fully aware of all those factors. There is nothing to infer any dishonest intention from the part of the respondent and Sec.420IPC would not be attracted. Civil Suit has already been filed as O.S.67/2014 and O.S.116/2015 for realization of the amount. The property of the 2nd petitioner has already been attached. Hence the entire proceedings initiated against the petitioners is an abuse of process of law, the learned counsel contends.

5.The learned counsel for the 1st respondent on the other hand, contended that huge amount has been got invested by the petitioners after entrapping the 1st respondent in a transaction of purchasing shares of M/s.Cochin Shell Products India Ltd, and thereby gaining trust and confidence of the first respondent/complainant. 1St petitioner subsequently introduced petitioners 2 and 3 as experienced jewellers involved in gold business and he was also taken to their business premises and convinced him that on investing funds abroad, there would be 100% profit. It is also his contention that 1st accused who is a lawyer, approached the 1st respondent with a draft partnership deed and thereby fraudulently and dishonestly persuaded the complainant to join them in executing the partnership deed on 12.12.2012. The partnership was also registered but apart from the registration, the firm never started functioning and no business was conducted. Thereafter the 1st respondent was forced to invest money in gold business in Madagascar on various occasion. It is also his contention that the petitioners colluded and converted the money in violation of their trust reposed upon them. There is also allegation of advancing amount for the daughter's marriage of the 1st petitioner. In total, according to him, an amount of Rs.75,27,263/- has been obtained from him. A promissory note acknowledging the debt is issued on 13.9.2013. It is also his contention that the 1st petitioner executed a Power of Attorney with