Ashok Kumar vs State, P. Kannan and Mrs. Saroja

C.S. Karnan, J.—The short facts of the case are as follows:-

The revision petitioner herein/defacto complainant had lodged a complaint before the respondent-police stating that the first accused fraudulently

represented to him that he would be clearing the liability to him of a sum of Rs. 6,87,300/- by issuing a cheque, without any intention of honouring

the same and at the same time claiming to have good business at Kancheepuram Silk Industry and of securing an export order of Rs. 15,00,000/-,

and falsely claimed a further sum of Rs. 4,00,000/- promising to return the entire amount of Rs. 10,87,300/- with an additional amount from the

profit and thus inducing the complainant to give him a further amount of Rs. 4,00,000/- and the complainant in all suffered a sum of Rs.

10,87,300/-. As the accused did not have any intention to return the amount wrongfully obtained, the first accused has committed an offence

punishable u/s 420 IPC and in the course of the same transaction, the second accused who is the mother of the first accused abetted in committing

the offence by claiming that she would guarantee the payment by offering security of her property documents after which she denied to the

complainant of her liability to make good the amount to the complainant and thus the second accused has committed an offence punishable u/s 420

r/w 109 of IPC.

In the said case, the Inspector of Police, after investigation, had filed the charge sheet and listed four witnesses and annexed five documents. After

serving a copy of the charge sheet on the accused, the accused pleaded not guilty and hence the prosecution case proceeded with.

P.W. 1 had adduced evidence that the first accused had issued a cheque for a sum of Rs. 6,87,300/- to discharge the loan availed from the

defacto complainant. When the said cheque was presented for collection, the same was returned for ""want of funds"". Further, the first accused

made a false representation as if he received an order to export raw silk to foreign countries and induced P.W. 1 to part with Rs. 4,00,000/-. In

the said transaction, it is alleged that the second accused abetted with the first accused to commit the offence. P.W. 1 further adduced evidence

that the first accused borrowed a loan of a sum of Rs. 2,00,000/- on 23.11.1993 by cash and cheque and borrowed a further sum of Rs.

1,25,000/- on 27.11.1993. P.W. 1 further adduced evidence that the first accused executed a promissory note and paid the interest for about

seven months and thereafter, he committed default and vacated the premises. P.W. 1 had admitted that he paid the said amount after collecting the

title deeds of immovable property from the first accused. Further, he had not seen when the second accused executed a letter in the presence of

any witnesses.

P.W. 2, P.W. 3, P.W. 4 had adduced evidence on the same lines as P.W. 1. P.W. 5, the Sub Inspector of Police had adduced evidence that

the accused had received the amount from P.W. 1 and cheated him. Therefore, the case has been leveled against the accused. Further, he had filed

a final report after the case had been registered and investigated by the Sub Inspector of Police, Gopalakrishnan. Subsequently, the said

Gopalakrishnan and Sub Inspectress Manjula were both transferred and as such, he had taken charge of the case and proceeded with it.

On recording the evidence of witnesses and on perusing the exhibits marked by P.W. 1., the learned Magistrate dismissed the prosecution case

and discharged the accused from the offence.

Aggrieved by the acquittal order, the defacto complainant has filed the above revision.

The highly competent counsel appearing for the revision petitioner contended that both accused made false promises and received amount from

the petitioner, in order to arrange good business in Kancheepuram Silk, inducing further that they would secure an export order and pay increased

interest to the petitioner. Believing the same, the petitioner paid the said amount and as such, both accused had committed an offence u/s 420 of

IPC. The second accused, being the mother of the first accused, promised and abetted that she would guarantee for the said amount and as such,

she had given an undertaking letter. Thereafter, she disagreed with the letter and loan amount and therefore, she has also committed an offence u/s

109 IPC. Hence, the case has been leveled against the accused, but the learned Magistrate has given findings that the said transaction is only of

civil nature. P.W. 2-Walter had categorically stated that he had taken the first accused to the complainant and introduced him and taking advantage

of this introduction, the accused had cheated the petitioner herein by giving false promise. The accused also received money in the presence of

P.W. 2, who stood as witness.

The very competent counsel for the first respondent vehemently argued that initially the case had been registered by the Sub Inspector of Police,

viz., Gopalakrishnan, in Crime No. 90 of 2002, thereafter, the case has been conducted by a Sub Inspectress of Police, viz., Manjula. After her

transfer from the post, one Subramaniam, the present Sub-Inspector proceeded with the case and also deposed about the entire factual position of

the case through four witnesses excluding himself and also marked five documents in support of his evidence. As such, the prosecution case has

been established against the accused. The said transaction between the accused and defacto complainant is not purely a loan transaction but on the

basis of false promise given by both accused stating that there is good business prospects at Kancheepuram Silk Industry and also with the

promise of paying good interest to the petitioner through an export order obtained for exporting silk raw materials to foreign countries. Believing

the same P.W. 1 had paid the said amount i.e., a sum of Rs. 10,87,300/-. Subsequently, the accused neither returned the said amount nor

arranged any silk business nor secured any orders for export and therefore, both the accused had committed an act of fraud on the defacto

complainant. Hence, the prosecution case has been appropriately registered and proceeded with.

On verifying the facts and circumstances of the case and the grounds raised by the learned counsel for P.W. 1 and arguments advanced by the

learned Additional Public Prosecutor, Mr. C. Balasubramaniam, and on perusing the trial Court order, this Court does not find any discrepancy for

acquitting the accused. This Court''s further view is that the accused had deposited the title deed of the immovable property with P.W. 1 as

security for obtaining the said loan. Besides this, he had executed a pronote for the said loan and he had also paid the interest on the said loan for

seven months and the same has been admitted by P.W. 1 in his cross-examination. Therefore, the transaction between the accused and P.W. 1

amounts to loan transaction which is purely of civil nature. No documentary proof had been marked to show the existence of silk business and

export order. However, this Court observes that the cheque has been issued for discharge of a legally enforceable debt and therefore, the

aggrieved revision petitioner herein can obtain his remedy before the appropriate forum. Therefore, this Court is not inclined to entertain the

revision. In the result, the above revision is dismissed. Consequently, the order passed in C.C. NO. 8650 of 2004, on the file of XI Metropolitan

Magistrate, Saidapet, Chennai, dated 22.05.2006 is confirmed.