M. Nainar and Another vs Varadharajan

M. Sathyanarayanan, J.—The Petitioners are arrayed as Accused No. 8 and 23 in CC No. 71 of 2006 on the file of the Court, of Judicial

Magistrate, Polur, Tiruvannamalai District and they along with 25 other accused are facing prosecution for the alleged commission of the offence

u/s 406 and 420 of IPC. The Respondent herein has filed the abovesaid private complaint which was taken cognizance by the jurisdictional

Magistrate.

The averments made in the complaint would disclose that the complainant is a practising advocate at Tiruvannamalai and the Petitioners and

some of the accused are office bearers and former office bearers of Tamil Nadu Retrenched census Employees'' Association. The said union

originally approached a lawyer to prosecute their case before the Tamil Nadu State Administrative Tribunal and since he failed to perform his

duties, the services of the Respondent/ complainant was engaged. The complainant had travelled to Delhi number of times in respect of the appeal

preferred by the said association before the Hon''ble Supreme Court of India and he had spent lot of time and energy in conducting the said case.

It is further averred in the complaint that the Respondent/complainant had stayed at New Delhi for more than 100 days and made visits to Delhi

by train journey. All the accused had assured and agreed to pay the fees payable to the senior advocate at New Delhi who had conducted the

case before the Hon''ble Supreme Court of India and also to two other counsel. In respect of the Respondent/complainant, all the accused had

assured that they will provide him a new TATA Sumo car and also settle his fees amounting to a sum of Rs. 5,00 000. However, the first

Petitioner/accused No. 8 had paid a sum of Rs. 12,000 only and accused Nos. 1, 2 and 14 had paid meagre sum of money by way of fees.

Subsequently a meeting of the accused were convened wherein the accused have agreed to pay a sum of Rs. 3,00,000 to the

Respondent/complainant and in this regard accused No. 1 and 2 had issued a cheque which on presentation got dishonoured and therefore,

complaints in C.C. No. 4293 and 4294 of 1999 were filed before the Metropolitan Magistrate Court at Egmore Chennai.

The Respondent/complainant made a prayer to direct the accused to pay the fee due to him a sum of Rs. 5,00,000 failing which to punish all the

accused for the commission of the offence u/s 406 and 420 of the IPC.

Accused No. 8 and 23, challenging the legality of the said complaint, had filed this petition to quash the said proceedings insofar as they are

concerned.

Mr. S. Shanmughavelayutham, learned senior counsel appearing for Mr. T. Vijaya Raghavan, counsel appearing for the Petitioners would

submit that even assuming without admitting that the allegations in the complaint are true, still the ingredients of the offence u/s 406 and 420 of IPC

have not been made out against the Petitioners.

The learned senior counsel has also drawn the attention of the Court to the prayer made in the complaint and the same is extracted below:

(a) to direct the accused to pay a sum of Rs. 5,00,000 (Rupees Five Lakhs) to the complainant to pay fees to the Senior Advocate Mr. M.S.

Ganesh, Hon''ble Supreme Court of India, Mr. Lakshmi Narayanan, Advocate High Court, Madras and Mrs. Anuratha Mukarjee New Delhi.

(b) to direct the accused to provide a Car TATA Sumo (brand new) to the complainant.

(c) to direct the accused to pay the costs to the complainant.

(d) to punish the accused for cheating criminal breach of trust u/s 406 and 420 IPC by way of fine, imprisonment or both.

The learned senior counsel appearing for the Petitioner in support of his submissions placed reliance upon the following decisions:

(i) S.W. Palanitkar and others Vs. State of Bihar and another,

(ii) Kailash Kumar Sanwatia Vs. The State of Bihar and Another,

Even though the Respondent has been served with notice, and his name is appearing in the cause list, there is no representation on his behalf and

hence, this Court is proceeding to dispose of this petition on merits.

The sum and substance of the complaint is that the services of the Respondent/ complainant was engaged by the Tamil Nadu Re-trenched

Census Employees Association in which the Petitioners and other accused were members/present/former office bearers and in this regard he had

made all sincere efforts to conduct their case before the Hon''ble Supreme Court of India by spending his precious time and energy. It is also the

case of the Respondent/complainant that when he went to New Delhi number of times and instructed the senior advocate for conducting the case,

all the accused had promised to pay a sum of Rs. 5,00,000 to him and also provide him a new TATA Sumo car. However, the accused without

keeping or fulfilling their promise, were paid only a meagre sum and therefore, all the accused are guilty of the commission of the above said

offences.

In S.W. Palanitkar v. State of Bihar (supra), Appellant therein was prosecuted for the alleged commission of offences under Sections 406 and

420 read with Section 120B of the IPC on the ground that the terms and conditions of the agreement have been violated. The Appellant therein

has filed a petition u/s 462 of Code of Criminal Procedure before the High Court of Patna for quashment of the said proceedings and the same

was dismissed by the Patna High Court and hence appeal was preferred before the Hon''ble Supreme Court of India. The Hon''ble Supreme

Court of India, had taken into consideration catena of decisions and found that there is nothing in either in the complaint and/or in the sworn

statements of the complainant and the three witnesses with regard to the entrustment of any property to any of the Appellants at all or the

Appellants had domain over any of the properties. The Hon''ble Supreme Court of India further found that in order to constitute an offence of

cheating, the intention to deceive should be in existence at the time when the inducement was made and it is also necessary to show that a person

had fraudulent or dishonest intention at the time of making the promise to say that he committed an act of cheating. A mere failure to keep up

promise subsequently cannot be presumed as an act leading to cheating.

In Kailash Kumar Sanwatia v. State of Bihar (supra), the Appellant therein was prosecuted for the alleged commission of offence punishable

u/s 405 and 409 read with Section 34 of the IPC and it was held that unless misappropriation, or conversion to personal use or disposal of

property is established the ingredients of Section 405 or 409 would be made out.

This Court has carefully considered the submissions made by the learned senior counsel appearing for the Petitioner and also perused the

typed set of documents and decisions cited by him.

The ingredients of an offence of the criminal breach of trust are:

Entrusting any person with property or with any dominion over property.

That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that

property or wilfully suffering any other person so to do in violation:

(i) of any direction of law prescribing the mode in which such trust is to be discharged, or

(ii) of any legal contract made touching the discharge of such trust.

An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:

(i) deception of a person either by making a false or misleading representation or by other action or omission;

(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.

For the purpose of constitute an offence of cheating, the complainant is under obligation to show that the accused had fraudulent or dishonest

intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused

to keep his promise, in the absence of intention at the time of making initial promise, no offence u/s 420 of IPC can be said to have been made out.

Keeping the said principles in mind, this Court has perused the averments made in the complaint. The averment would disclose that for the

services rendered by the Respondent/complainant, the Association in which the Petitioners are members/office bearers present/past assured to pay

a sum of Rs. 5,00,000 by way of fees and also provide with a new TATA Sumo car and it has been failed to be fulfilled.

It is pertinent to point out at this juncture, the Respondent has arrayed 27 persons as accused and it is purely a case of nonpayment of fees

with regard to the services rendered by the Respondent/complainant in his capacity as advocate. At any stretch of imagination, the non-payment of

fees and the promise to provide the Respondent/ complainant with new TATA Sumo, will not attract the ingredients of Section 406 and 420 of

IPC. There are no averments to that effect that the Petitioners/accused had fraudulent or dishonest intention at the time of making promise or

representation and therefore, failure to keep such a promise will not attract the commission of offence of cheating. Moreover, the averments are

lacking in the complaint with regard to the entrustment and whether the Petitioners herein were activated by dishonest intention or not.

The Respondent/complainant except by stating that assurance given by the accused have not been complied with, have not averred anything

with regard to the basic ingredients of the commission of the offence u/s 406 and 420 of IPC. In the considered opinion of the court that even

averments in the complaint if it be given face value and taken to be correct in their entirety, have not disclosed the commission of the offences u/s

406 and 420 of IPC. Therefore, continuance of the same would definitely lead to miscarriage of justice.

In the result, this Criminal Original Petition is allowed. The proceedings in C.C. No. 71 of 2006 on the file of the judicial Magistrate, Polur,

Tiruvannamalai District, insofar as these Petitioners accused No. 8 and 23 are concerned is quashed. Consequently, connected miscellaneous

petitions are closed.