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Judgment
M. Thanikachalam, J.—The petitioner, who is the accused in C.C. No. 261/2003 pending on the file of the Judicial Magistrate No. II,
Poonamallee, has filed this petition, to quash the above said case, since there are no materials of any kind, to proceed further.
The learned counsel Mr. A. Jeenasenan appearing for the petitioner/accused submits that the allegations in the case do not attract the ingredients
of cheating, that no particulars have been given regarding the payment already made by the accused company to the complainant, which would go
to show, that there was no intention at the inception, to cheat the complainant, that the nature of allegations levelled against the petitioner would
show, that it is a civil dispute, whereas an attempt is made to convert the same as criminal offence, that this case is filed with a mala fide intention
and that is why there is an inordinate delay in preferring the complaint. On the above said grounds, an attempt is made to quash the entire
proceedings.
Per contra, the learned Government Advocate Mr. A.N. Thambidurai would contend, that the complaint, which was followed by a final report,
preceded by the statements recorded u/s 161(3) Cr.P.C. revealed the fact that there was an intention or mens rea, as the case may be, to cheat
the complainant, even at the inception and to that effect, materials are also available, and if that is not contradicted or repudiated, then it will lead to
conviction u/s 420 I.P.C. Under the above said circumstances, the question of quashing the proceedings, is beyond the scope of Section 482
Cr.P.C. Only in this context, we have to see the allegations or the averments in the compliant, as well as the supportive materials, just to satisfy,
whether the allegations as such available, are prima facie in nature, to implicate the accused. It should not be the endeavour of this Court, at this
stage, that too u/s 482 Cr.P.C., to find out whether the averments or allegations supported by other materials would support the conviction or
sustain for a conviction, etc. If prima facie case is made out, then stalling of further proceedings should be avoided and the case should reach the
natural legal destiny and preventing the same alone, would amount to injustice.
The final report says that the accused, who is the Director of Alpha Overseas International Pvt. Ltd. with a fraudulent intention of cheating the
complainant, induced him to undertake the leather processing job work on piece rate basis, without insisting for any advance payment and thereby
induced the complainant, to spend huge sum of money by way of labour charges, etc. It is pointed out further that he took delivery of the finished
leather without making any payment therefor, as represented at the inception. Therefore, as per the final report, the accused cheated the
complainant, without paying the labour charges to the tune of Rs. 9.28 lakhs. Further, in the final report, under the heading ""whether any offence
appears to have been committed and if so, by whom""; it is specifically stated that the accused made a false and willful misrepresentation, knowing it
to be false and that only at the inducement, the complainant undertook the leather processing work and that as promised, amount has not been
paid and therefore, the acts of the accused come within the meaning of willful misrepresentation with a dishonest and fraudulent intention of
cheating the complainant and thereby depriving him of the payments, which the complainant is entitled to. The ingredients required for cheating,
even at the inception, are prima facie available, as seen from the final report and therefore, on the ground that the allegations are insufficient to
make out a case, quashing the proceedings is impossible. To buttress the averments made in the final report, there are sufficient materials also, as
seen from 161(3) statements recorded by the police and this fact is not very much contradicted.
The subsequent payment admittedly made by the accused, should relieve him from the alleged misrepresentation or intention to defraud, at the
inception must go, is the submission of the learned counsel for the petitioner. In this regard, it is averred in the complaint that to inspire confidence
in the mind of the complainant, the accused initially made some belated payment and thereby induced the complainant, to undertake more volume
of job work and therefore, on the basis of this averment, the payment said to be have been made by the accused at belated stage, will not relieve
him from the criminal liability, if any committed at the inception itself. Hence, on this ground also, it is not possible to quash the proceedings.
The learned counsel for the petitioner further submits that it is purely a civil dispute and therefore, initiating criminal proceedings should be
prevented and in aid, he sought the help of the decision in U. Dhar & Anr. v. The State of Jharkhand & Anr. 2003 (1) JTC SC 410. In the case
involved in the above decision, it appears, the materials available in that case have not made out a case against the accused, for the alleged
offences and therefore, the Apex Court has ruled, that the dispute between the parties is of a purely civil nature and therefore, choosing the criminal
forum for prosecution is not advisable. It is observed that -
Since the basic ingredients of the relevant section in the Indian Penal Code are not satisfied, the order taking cognizance of the offence as well as
the issue of summons to the appellants is wholly uncalled for.
It is the further observation of the Apex Court that
when no case is made out for the alleged offences even as per the complaint filed by the complainant, there is no reason to appellants to be
subjected to trial for the alleged offences.
If the above dictum is to be applied straight away to our case, then in the complaint, the absence of allegation must be available. As
aforementioned, there are sufficient allegations and there are materials also to some extent, to support the same and therefore, on the ground of
civil nature, when there is some material to establish the criminal act also, the proceedings cannot be quashed.
The learned counsel for the second respondent, who is the complainant has submitted, even if it is a commercial transaction or money
transaction, if there are reasons to hold that the offence of cheating is made out, the proceedings cannot be quashed only on the hyper-technical
approach, branding the transaction as civil nature. For the above principle, support is sought for from the decision Rajesh Bajaj v. State NCT of
Delhi 1999 SCC (Cri) 401, wherein the Apex Court has ruled -
It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is
it necessary that the complainant should stated in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the
definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the
complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash
criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an
FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are
absolutely necessary for making out the offence.
It is further observed :
The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which
would become decisive in discerning whether there was commission of offence or not.
For the reasons assigned by me supra, there are allegations to rope in the accused prima facie, to face the trial at least and therefore, as
observed by the Apex Court, this Court cannot adopt a strictly hyper-technical approach and quash the proceedings, whereas this Court should
allow the proceedings to go on, to have its legal end. No other substantial ground is urged for quashing the proceedings.
For the foregoing reasons, I find no merit in the petition to quash the proceedings at the threshold itself and the petition is dismissed.
Consequently, C.M.P. Nos. 9714 and 9715 are also dismissed.
The learned counsel for the petitioner submits that a direction may be given to the trial Court, that it should not be influenced by the above
observations. It is needless to say that the trial Court shall approach the case from proper perspective, according to law, uninfluenced by the above
observation and dispose of the case according to merit as per law.