A. Elumalai and Another vs State and Another

Janarthanam, J.—This is a petition filed u/s 482, Code of Criminal Procedure to quash the proceedings in C.C.5899 of 1985 on the file of

the Second Metropolitan Magistrate, Egmore, Madras.

The brief facts are. The Petitioners accused 1 and 2 and the first informant Raghuraman are employed in the Integral Coach factory, Madras.

They are friends. During the year 1980, the first Petitioner was constructing a house. He was unable to complete the construction, because of want

of funds. He approached his friend Raghuraman to oblige him by an accommodation of Rs. 28,000, for the construction of the house. Raghuraman

immediately obliged his friend by giving him a loan of Rs. 28,000, out of the sale proceeds of the plot he owned in Aminjikarai. It appears that the

first Petitioner also took a loan of Rs. 10,000 from the factory for the purchase of the house site. He somehow or other spent that amount and the

factory was insisting for the production of the sale deed for the purchase of the house site or for the return of the money. Placed in such a

predicament position again, the first Petitioner approached his friend Raghuraman requesting him to lend a sum of Rs. 10,000. He readily obliged

him by giving a loan of Rs. 10,000. Utilising the amount the first Petitioner purchased the house site and produced the sale deed before the factory

and got himself wriggled out of the situation.

(ii) Similarly, the second Petitioner also obtained a loan of Rs. 7,500 in the year 1981 from the factory for the purpose of purchasing a house site.

He also spent the amount. The factory in turn issued a notice directing him to produce the sale deed or repay the amount of Rs. 7,500. In such a

situation, he also approached Raghuraman for lending his helping hand in obliging him by giving loan of Rs. 7500, He readily helped him by granting

the loan.

(iii) Subsequently, both the Petitioners were unable to honour their commitments to Raghuraman. But Raghuraman appeared to have complained to

the known persons and friends of the Petitioners about the treacherous act of not repaying the amount as promised by them earlier. On coming to

know of this, the Petitioners got aggrieved and told Raghuraman that they would not pay the amount and it was for him to take any action whatever

against them, Subsequently Raghuraman filed a complaint before the City Crime Branch Police, Madras, on 21-2-1984. The same was registered

as Crime No. 112 of 1984 u/s 420, I.P.C. After completing the formalities of the investigation, a report u/s 173, Code of Criminal Procedure had

been laid before Court against the Petitioners for an offence u/s 420, I.P.C. appeared to have been committed by them.

The Court below took the case on its file and framed a charge against both the Petitioners u/s 420, I.P.C. Both the Petitioners appeared to have

denied the charges and claimed to be tried. It is at this stage that the Petitioners had come forward with the present petition.

Learned Counsel appearing for the Petitioners made the submissions. They are-

(1) There is misjoinder of charges and the prosecution so launched is liable to be quashed on this ground alone.

(2) The transactions between the parties are solely of civil nature and by no stretch of imagination, it can be stated that an offence u/s 420, I.P.C.

would have been made out against the Petitioners, on the facts and circumstances of the case.

Learned Counsel for the Petitioners, realising that the argument, if any, advanced on the first submission regarding the misjoinder of charges, is

not likely to yield any result, would rest content in submitting that he is not pressing the same. Therefore, the first submission of the learned Counsel

for the Petitioners is not considered.

Regarding the second submission, it is assumed that various allegations of fact, which have been made in the case by the first informant, are

taken to be correct. Even after making the allowance, I am of the view that the facts do not disclose the commission of any offence on the part of

the Petitioners u/s 420, I.P.C. There is nothing in the first information report to show that the Petitioners had the dishonest or fraudulent intention at

the time when the informant parted with the various amounts, namely, Rs. 28,000 and Rs. 10,000 to the first Petitioner on two occasions and Rs.

10,000 to the second petitioner on one occasion. There is also nothing to (sic) indicate that the Petitioners induced the first (sic) informant to pay

them the requisite amounts by deceiving him. It is not at all the case of the first informant that a representation had ever been made by the

Petitioners to him at or before the time, when he paid the money to them and at the time the representation was made, the Petitioners knew the

same to be false. The fact that the Petitioners subsequently did not abide by their contract by itself is not sufficient to fasten the criminal liability on

the Petitioners for the offence of cheating u/s 420, I.P.C. It might create a civil liability for them on the ground of breach of contract.

In view of what has been stated above, I am of the view that this is a case purely of a civil nature and no offence u/s 420, I.P.C. can be said to

have been made out against the Petitioners. The petition therefore, deserves to be allowed.

In the result the petition is allowed, and the proceedings in C.C. 5899 of 1985 on the file of the Second Metropolitan Magistrate, Egmore,

Madras, are quashed.