THE HON’BLE SRI JUSTICE R.KANTHA RAO Crl.P.No.456 of 2014 Date:03-06-2014 Between:
Nelson Lewis NRE …Petitioner/Accused And The State of A.P. and another …Respondents ORDER:
THE HON’BLE SRI JUSTICE R.KANTHA RAO Crl.P.No.456 of 2014 This criminal petition is filed by the petitioner under Section 482 Cr.P.C. to quash the entire proceedings in C.C.No.1274 of 2013 on the file of the III Additional Chief Metropolitan Magistrate, Nampally at Hyderabad.
2. The brief averments in the complaint filed by the second respondent-complainant may be stated as follows:
The petitioner-accused submitted online application to the second respondent company for allotment of units under Reliance Media and Entertainment Fund on 16-07-2007 for Rs.8 lakhs through HSBC Bank Ltd. Pending realization of the above said application amount, the accused was inadvertently allotted 30939.68 units vide folio No.43546368515 and subsequently the corresponding statement of accounts were also issued. On 08.01.2010 the petitioner-accused submitted request for redemption of the aforesaid units under the said folio and the said request was processed by the complainant and on 13.01.2010 an amount of Rs.6,92,109.51 being the redemption amount of the above said units under the said folio was directly credited to the bank account of the accused maintained with HSBC, Juhu Ville Parle Branch, Bank, Mumbai.
3. According to the complainant, during the course of audit of historic transactions, the complainant noticed that the above said online transaction was not honoured by the bank. As the online transaction towards the application amount was bounced, the accused was not entitled for the allotment of 30938.68 units and also that the redemption amount of Rs.6,92,109.51 ps. was erroneously paid by the complainant. On noticing the same, the complainant issued letters dated 16.12.2011 and 13.03.2012 requesting the accused to refund the amount of Rs.6,92,109.51 ps., however, the said letters did not yield any response from the accused. Consequently, the complainant got issued legal notice to the accused demanding to refund the amount of Rs.6,92,109.51 ps. together with interest @ 24% per annum from 08.01.2010 till the date of repayment within (15) days from the date of receipt of the notice dated 17.04.2013, but the accused failed to reply the same.
4. It is the version of the complainant that the accused was fully aware of the fact that the online transaction was not honoured by the bank and therefore, the accused was not entitled for allotment of units, however, the accused not protecting the lawful interest of the complainant which the accused is bound to do, taking advantage of the complainant’s ignorance of its act, for wrongful gains suppressed the unauthorized receipt of units and willfully chose to submit request for redemption/encashment of the entire units and received the redemption amount. The pre-occupied intention of the accused to take advantage of the complainant’s ignorance of the said erroneous allotment of units is further fortified with the fact that even though having received the complainant’s notice of erroneous allotment of the said units and complainant’s claim to refund the redemption amount, the accused deliberately and willfully ignored the twice sent notices only for wrongful gains and to cause wrongful loss to the complainant as the complainant had to pay to M/s. Reliance Mutual Fund for the said amount which was inadvertently paid to and received and appropriated by the accused. Thus, alleging that the accused cheated the complainant with knowledge of allotment of units by mistake and redemption of the said units, resorted to misappropriation and caused wrongful loss to the complainant, the present complaint is filed.
5. The learned Magistrate took cognizance of the offences under Sections 409, 406, 418 and 420 of IPC. The accused filed the present criminal petition to quash the said complaint.
6. The learned counsel appearing for the petitioner would submit that even according to the complainant, there was no dishonest intention on the part of the accused to obtain units from the complainant company by making online application, thinking that the units were allotted to him in the usual course, he applied for redemption and got them redeemed. Therefore, according to the learned counsel, the petitioner-accused cannot be prosecuted for any criminal offence.
7. On the other hand, the learned counsel appearing for the second respondent-complainant would contend that as no amount was credited to the complainant’s company, the petitioner was very much aware that the units ere allotted to him by mistake but kept quiet. He would further contend that after redeeming the units, the accused was fully aware of the fact that the units were allotted by the complainant company to him by mistake, he is under a duty to repay the amount, but did not do so in spite of two notices sent to him. According to the learned counsel appearing for the complainant, the real intention of the accused would be known after the parties let in evidence before the trial Court and it is premature to presume innocence of the accused to quash the proceedings in exercise of powers under Section 482 Cr.P.C.
8. From the facts of the case, it cannot be said that no criminal offence is involved as rightly contended by the learned counsel appearing for the complainant, the intention of the accused would be known only after the evidence is adduced at the trial. The learned counsel appearing for the petitioner however relied on IRIDIUM INDIA TELECOM LIMITED
[1]
v. MOTOROLA INCORPORATTED AND OTHERS – wherein the ingredients of cheating have been explained by the Hon’ble Supreme Court. The facts of the case before the Supreme Court are not identical to the facts of the present case. Therefore, in the instant case, it cannot be said that either the offences of cheating or breach of trust are not attracted. The learned counsel further relied on MRS. SARAH MATHEW
[2]
v. INSTITUTE OF CARDIO VASCULAR DISEASES ND OTHERS – wherein the Supreme Court held that Section 473 Cr.P.C. enjoins Courts not only to see whether delay has been explained but in addition to see whether it is requirement of justice to ignore delay.
9. In the present case, according to the learned counsel appearing for the petitioner the cognizance was taken by the learned Magistrate beyond the period prescribed under Section 468 Cr.P.C. and therefore, the complaint itself is not maintainable.
10 On the other hand, the learned counsel appearing for the second respondent-complainant would submit that that audit was done on 14.12.2011 and on the said date the second respondent came to know about the mistake and therefore, the starting point of limitation is 14.12.2011. According to the learned counsel the complaint is therefore well within time and cannot be said to be barred by limitation. He submits that limitation is a mixed question of fact and law which can be decided by the trial court after going through the facts and circumstances of the case and also taking necessary evidence.
11. This Court would be justified in quashing the F.I.R./complaint in exercise of jurisdiction under Section 482 Cr.P.C. only when no prima facie case is made out or if the criminal proceedings are initiated with mala fides or when the allegations levelled in the complaint are totally absurd. In this case, it cannot be said that the complaint made by the second respondent is either frivolous or absurd, there is some material indicating commission of alleged offences by the petitioner-accused. The court while acting under Section 482 Cr.P.C. can only broadly examine the allegations made in the complaint. It is not supposed to give its decision as to in fact which offence is attracted and which offence is not attracted, it is for the trial Court to frame appropriate charges. Apart from other offences, retaining the amount after coming to know that the shares were allotted to the accused by mistake, certainly attracts the offence under Section 403 IPC is attracted. This apart, what are the other offences which are made out against the accused is the question which the trial Court has to decide after examining the material available on record. If this court records a finding as to which offence is in fact attracted while exercising jurisdiction under Section 482 Cr.P.C. it would be prejudging the issue.
12. Considering all the aspects of the matter, I arrived at a definite conclusion that this is a matter to be decided after leading evidence in the trial Court and it is not a fit case to quash the proceedings against the petitioner-accused in exercise of powers under Section 482 Cr.P.C. Any opinion expressed while disposing of this application is limited for the purpose of the present criminal petition, and the trial court shall not be influenced by any of the observations made by this Court and proceed with the trial in accordance with law. Consequently, the criminal petition is dismissed.
Miscellaneous petitions, if any, filed in this criminal petition, shall stand closed.
R.KANTHA RAO, J Date:03.06.2014 Ccm THE HON’BLE SRI JUSTICE R.KANTHA RAO Crl.P.No.456 of 2014 Date:03-06-2014 [1] 2011(1) SCC 74
[2] AIR 2014 SC 448