This Criminal Revision has been filed against the judgment, dated 24.10.2009 passed in C.A.No.62 of 2008 on the file of the Principal District and Sessions Judge, Theni, confirming the Judgment of the District Munsif-cum-Judicial Magistrate, Aundipatti, in C.C.No.238 of 2004, dated 10.09.2008.
2.According to the prosecution, the 2nd respondent is the son of the 1st accused and they had financial transaction with the de-facto complainant and on the basis of slips money would be advanced by the de-facto complainant to the accused and the accused would collect the monies payable in respect of the slips from the Cardamom Mandi and the payment would be made to the de-facto complainant and in the above process, a sum of Rs. 23,26,651/- was due and even after repeated demands, the accused did not pay the amount and thereafter, a mediation was held and http://www.judis.nic.in 3 the 1st accused effected an agreement, dated 18.06.2000 and the 2nd accused signed in the same as witness. It is the further case of the prosecution that the 1st accused had entered into an agreement for purchase of properties with PW7 Prince Joseph and in respect of the same property, an agreement was also entered into with the de- facto complainant, but the 1st accused did not cancel the agreement which was entered into by them with Prince Joseph and hence, Prince Joseph was unable to sell the property, realise the proceeds and pay the money to the de-facto complainant. Hence, the de- facto complainant lodged a complaint before the Judicial Magistrate, Uthamapalayam under Section 190(1)(a), 200 and 156(3) of the Criminal Procedure Code. The same was forwarded to the learned Judicial Magistrate to the 1st respondent police and the same was registered as Crime No.4 of 2003 for the offences punishable under Sections 420 r/w 34 IPC.
3.It is seen from the records that after completion of the investigation, charge sheet was filed by the police and the same was taken on file by the District Munsif-cum-Judicial Magistrate, Aundipatti as C.C.No.238 of 2004. The trial court after analysing the materials available on record, both oral and documentary, has http://www.judis.nic.in 4 passed judgment, dated 10.09.2009 convicting the accused for the offences under Section 420 r/w 34 IPC and sentenced them to undergo Rigorous Imprisonment for a period of one year and also imposed a fine of Rs.2,000/- with default a sentence of 3 months. Aggrieved by the judgment of the trial court, the accused preferred an appeal in Crl.A.No.62 of 2008, which was heard by the learned Principal District and Sessions Judge, Theni. The learned first appellate court had also confirmed the findings of the trial court, by dismissing the appeal. Aggrieved by the concurrent findings of the courts below, the revision petitioners/A1 and A2 are before this court.
4.The learned counsel appearing for the revision petitioners submitted that the courts below failed to appreciate the oral evidence adduced by the prosecution, which will not disclose any offence alleged to have been committed by the accused; that the ingredient for the offence under
Section 420 IPC is not made out from the complaint as well as from the oral evidence; that the oral evidence adduced by the prosecution disclose only a money transaction between the petitioners and the de-facto complainant; that the agreement (Ex.P2) is caused by the petitioners shows that http://www.judis.nic.in 5 they have intention to cheat the de-facto complainant and the entire evidence available on record would go to show no criminal liability is made out as against the petitioners/accused and the petitioners had the intention at the very inception of receipt of money and also from the date of execution of Ex.P2 agreement; that the agreement alleged to have been executed by the petitioners will create only a civil liability and not criminal liability and that the first appellate court unnecessarily relied on the order of this court made the quash petition in Crl.O.P.No.38585 of 2003 and on that basis, hold that a case under
Section 420 IPC is made out. In view of the above circumstances, the judgements of the courts below are liable to be set aside and the criminal revision has to be allowed.
5.The learned Government Advocate (Criminal side) appearing for the 1st respondent and the learned counsel appearing for the 2nd respondent submitted that both the courts below, after properly analysing the entire materials available on record, had given a correct finding, which does not require interference by this court and prays for dismissal of the criminal revision. http://www.judis.nic.in 6
6.Heard both sides and perused the materials available on record.
7.The main contention raised on the side of the revision petitioners/Accused is that the ingredient for the offence under
Section 420 IPC is not made out from the complaint as well as from the evidence and the oral evidence adduced by the prosecution witnesses disclosed only a money transaction between the accused and the de-facto complainant and the entire evidence available on records would go to show that no criminal liability is made out as against the accused and the accused had no intention to cheat the de facto complainant and prays that the criminal revision has to be allowed, by setting aside the concurrent findings of the courts below.
8.It is the contention of the revision petitioners/accused that there was money transaction only between the first revision petitioner/A1 and the de-facto complainant and the first revision petitioner/A1 already paid the amount for the slip to the de facto complainant. but the de-facto complainant obtained Ex.P2 agreement by coercion and hence, it will not bind on them and they http://www.judis.nic.in 7 had no intention to cheat the de facto complainant and hence, they are entitled to acquittal.
9.In this case, the de-facto complainant was examined as PW1. PW1 deposed that the 1st accused borrowed Rs.23,00,000/- on the basis of slip interest, but he failed to repay the above amount and the 1st accused agreed to repay the above amount before the mediators and for that, he executed an agreement, but as per the terms of the agreement, he has not paid any amount and thereby cheated him and hence, he gave a complaint.
10.The learned counsel for the revision petitioners/accused argued that from the terms of agreement are breached, the remedy open to the aggrieved person is to file the civil suit as against the person, who breach the terms of agreement and no criminal case can be proceeded as against the wrong doer and in this case, already the 1st accused made over some documents such as pro-notes, sale agreements, Othi deals in favour of PW1 and hence, the remedy open to PW1 is to file a civil suit as against the accused for recovery of the above amount already borrowed, but PW1 has not chosen to file any civil suit as against the accused for http://www.judis.nic.in 8 recovery of the above amount and hence, no criminal case can be proceeded as against the accused.
11.Further, the learned counsel appearing for the revision petitioners submitted a ruling reported in 2000(2) Crimes 72 SC (Hridaya Ranjan Pd. Verma and others Vs. State of Bihar and Another), wherein it has been held in para 15 and 16 as follows:-
''15.In determining the question it has to be kept in mind that the distinction between mere breach or contract and the offence of cheating is a find one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test.
Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. Therefore, it is the intention which http://www.judis.nic.in 9 is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning that is, when he made the promise cannot be presumed.
16.Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference as much as the ingredients of the offence of cheating punishable under
Section 420 IPC and its allied offence under
Sections 418 and
423 has not been made out. So far as the offences under Sections 469, 504 and 120 (B) are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State http://www.judis.nic.in 10 of Haryana & Others Vs. Bhajan Lal and others (supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirely and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All that the respondent No.2 has alleged against the appellants is that they did not disclose to him that one their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No.2 part with property is not alleged expressly or even impliedly in the complaint. Therefore, the core postulate of dishonest intention in order to deceive the complainant – respondent No.2 is not made out even accepting all the averments http://www.judis.nic.in 11 in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuses of process of the court.''
12.Further, the learned counsel for the revision petitioners/accused argued that the complainant is required to show that the accused had fraudulent and dishonest intention at the time of making promise or representation and from the failure of the accused to keep up the promise, culpable intention right at beginning, then promise can not be presumed and the material available on record does not satisfy the ingredients of
Section 420 IPC and the prosecution has failed to establish the offence of cheating as against the accused and prays that the accused are entitled to acquittal. For that, learned counsel relied upon a decision reported in 2019 (1) MLJ (Crl.) 185 (S.Anbazhagan Vs. Sub Inspector of Police, (Law and Order), Othiyan Salai Police Station, Puducherry and another). In that case, in para 42, 43 and 44, it has been as follows:-
''42.We may reiterate that one of the ingredients of cheating as defined in Section 415 http://www.judis.nic.in 12 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract.
In Hira Lal Hari Lal Bhagwati v. CBI (2003) 5 SCC 257, this Court held:
''40.It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the http://www.judis.nic.in 13 necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office bearers right at the time of making application for exemption.''
43.In Vir Prakash Sharma v. Anil Kumar Agarwal (2007) 7 SCC 373, noticing, interalia, the aforementioned decisions, this Court held:
''13.The ingredients of
Section 420 of the Penal Code are as follows:
(i)Deception of any persons;
(ii)Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. No act of inducement on the part of the appellant has been http://www.judis.nic.in 14 alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.
14.What has been alleged in the complaint petition as also the statement of the complainant and his witnesses relate to his subsequent conduct. The date when such statements were allegedly made by the appellant had not been disclosed by the witnesses of the complainant. It is really absurd to opine that any such statement would be made by the appellant before all of them at the same time and that too in his own district. They, thus, appear to be wholly unnatural.
15.In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does http://www.judis.nic.in 15 not exhibit that there had been any intention on the part of the appellant herein to commit an offence under
Section 417 of the Penal Code.''
44.The said principle has been reiterated in All Carogo Movers (I) Pvt.Ltd. v. Dhanesh Badarmal Jain and Another (2007) 12 SCALE 391, stating:
''16.For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction http://www.judis.nic.in 16 of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.''
13.In this case, the alleged agreement executed by the accused was marked as Ex.A2. To prove the execution of Ex.A2 agreement, PW2 to PW5 were examined. PW2 stated during her evidence that on 18.06.2000, both the accused agreed to pay Rs.23,00,000/-, which was already borrowed on the basis of slip interest to PW1 and for that, Ex.A2 was executed in the house of PW4 and the accused accepted the terms of Ex.A2 agreement and the accused signed in the agreement in their presence, but the accused failed to repay the amount and there by cheated PW1.
14.At this juncture, it is necessary to refer Ex.A2 agreement. In Ex.A2 it is stated as follows:-
“ehd; jq;fsplkpUe;J rpypg; tl;bf;fhf http://www.judis.nic.in 17 gyjlitfspy; ngw;w njhiffspy; ehq;fs; jpUk;gf;nfhLj;jJ Nghf ghf;fp njhif &gha; 23>26>651.00/- ,Ugj;J %d;W yl;rj;J ,Ugjhapuj;J mWE}w;iwk;gj;njhd;W ehq;fs; jq;fSf;F nfhLf;f Ntz;bAs;s i\ njhif vq;fSf;F gy egh;fsplkpUe;J GNuh Nehl;Lfs; %yKk;> xj;jpahfTk;> fpiua vf;hpnkz;lhfTk; vq;fSf;F tuNtz;bAs;sJ i\ njhifia ehq;fs;
jq;fSf;F jw;NghJ nuhf;fkhf nfhLf;f vq;fshy; Kbahjjpdhy; ehq;fs; .....mbapy; fz;l GNuhNehl;Lf;fs;> xj;jpg;gj;jpuk;> Vyj;Njhl;lk; fpiua ngw ml;thd;]; nfhLj;J gjpT nra;J thq;fpAs;s vf;hpnkz;l;fisAk; ehq;fs; jq;fsplk; nfhLj;Js;s Nkw;gb GNuhNehl;L tifawhf;fspy; Nky;fz;l njhiffis jhq;fs; t#y; nra;Jnfhs;tPh;fshfTk;. Nkw;gb GNuhNehl;L tifawhf;fshy; jhq;fs; t#y; nra;Ak; njhif Nghf ghf;fpj;njhifia ehq;fs; jq;fSf;F nfhLf;f xg;Gf;nfhz;Ls;Nshk;. mbapy;
ehq;fNs Kd;dpd;W jq;fSld; xj;Jioj;J t#y; nra;J nfhLg;NghkhfTk;.” http://www.judis.nic.in 18
15.On careful perusal of Ex.A2, it reveals that already A1 borrowed money several times and he agreed to repay the balance amount of Rs.23,26,651/- to PW1 and for that, he made over the sale agreements, pro-notes and othi deeds in favour of the de-facto complainant. Further, it was specifically stated in Ex.A2 agreement that after made over of the above documents in favour of PW1, the accused have no right in respect of the above documents and the de-facto complainant is permitted to claim the amount as found in the above documents.
16.It is to be noted here that the accused made over the above documents in favour of PW1, hence, it is the bounden duty of PW1 to take steps to recover the balance amount of Rs.23,26,651/-. But PW1 failed to recover the above amount by way of filing civil suit as against the appropriate persons in whose favour the above documents stand.
17.It is admitted by PW1 that the accused made over the above documents in his favour. After made over, the person who made over in favour of others has no right and only the person, who received the made over has every right to recover the above http://www.judis.nic.in 19 amount from the concerned person in whose favour the above documents stand. But PW1 failed to recover the above amount by way of filing a civil suit.
18.Further perusal of Ex.P2, it reveals that already the accused made over the sale agreement, Othi Deeds, pro-notes which stand in their favour to PW1. But PW1 failed to recover the same by way of filing a civil suit as against the appropriate person in whose favour the above documents stand. Hence, it is held that the accused had no intention to cheat PW1. Hence, the offence under
Section 420 IPC is not made out as against the accused. Under these circumstances, this court is of the considered view that both the courts below without considering the above aspects, had erroneously given a concurrent findings, which is is liable to be set aside and accordingly, the concurrent findings of the courts below are set aside.
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19.In the result, the Criminal Revision is allowed. The impugned judgement of conviction and sentence are set aside. The revision petitioners/Accused are acquitted of the charge levelled against them. The bail bond if any executed by them shall stand cancelled and the fine amount if any paid by them shall be refunded to them.
09.05.2019 Index:Yes/No Internet:Yes/No vsd/er http://www.judis.nic.in 21 T.KRISHNAVALLI,J vsd/er Judgment made in Crl.R.C(MD)No.598 of 2009 09.05.2019 http://www.judis.nic.in 22 http://www.judis.nic.in