Nirmala R. Ram vs G. Vijayakumar

A. Ramamurthi, J.—Petitioner/9th accused in C.C. No. 97 of 1998 on the file of Judicial Magistrate V. Coimbatore has preferred the revision No. 653 of 1999 aggrieved against the order of dismissal passed in C.M.P. No. 12639 of 1998. The Petitioners/accused in C.C. No. 96 of 1998 on the file of Judicial Magistrate V. Coimbatore, have preferred the revision petition No. 657 of 1999 aggrieved against the order of dismissal passed in C.M.P. No. 9206 of 1998 dated 30.3.1999.

The case in brief for disposal of both the revision petitions is as follows:

The Respondent/complaint is one and the same person in both the cases. The accused had filed discharge petitions u/s 245 of the Code of Criminal Procedure that the plain reading of the complaint would reveal that there are no ingredients for an offence u/s 420 IPC. The complainant had already exhausted his remedy over the deposit receipt before the Civil Court. The matter is purely civil in nature and there is absolutely no basic element of mens rea. No single document has been filed to prove that all the accused have disappeared. The person who lost the remedy under the civil liability cannot be allowed to invoke criminal proceedings with the time barred cash receipt. No overt act has been stated against each accused. The complaint is also very vague.

The Respondent/complainant opposed the petitions and contended that the Petitioners are all partners and they are all jointly and severally liable. The complainant produced a receipt which alone indicated the intention of the accused. Mens rea cannot be proved at this state and it can be proved only in the course of trial. The partnership deed dated 24.10.1984 reveals the duties of each partner and they have also singed in the document. It is a best available evidence to show the mens rea.

After hearing the parties, the learned Magistrate dismissed both the applications and aggrieved against this, the present revisions are filed. Since the complainant in both the cases and the issue involved are one and the same, a common order is pronounced.

Heard the learned Counsel of both sides.

The points that arise for consideration are

1) Whether the orders passed by the court below are proper and correct?

2) Whether the Petitioners are entitled to an order of discharge?

Points: The Respondent filed a private complaint against the Petitioners alleging that the complainant deposited a particular amount and obtained the cash certificates. In spite of maturity of the deposit and in spite of repeated demands the matured amount was not paid by the accused. The accused also disappeared and never returned the amount and thereby committed an offence punishable u/s 420 IPC.

Learned Counsel for the Petitioner mainly contended that the complainant has not filed any document and the remedy is only to file civil case and there is absolutely no mens rea to invoke the provisions u/s 420 IPC. Further more, the person who had signed in the receipts as Managing Partner and for other partners there is no liability and they have no connection whatsoever with the case. It is prima facie clear that the amount has been deposited by the complainant and in spite of the maturity period, it was not returned to them. Although the Petitioners took a stand that they have no connection with the same, they have not filed any document to substantiate the same. It is not necessary for the complainant to produce all the documents at the time of filing the complaint and he can produce the same during the course of trial. The question whether these Petitioners have connection or not can be considered only in the course of trial. When once these Petitioners are admitted as partners in the company, wherein the money had been deposited by the complainant, it is prima facie sufficient to proceed further in the case.

Learned Counsel for the revision Petitioners relied on the decision reported in G. Sagar Suri and Another Vs. State of U.P. and Others, and it is a case filed u/s 482 of Code of Criminal Procedure for quashing the complaint. It appears that the accused persons approached the complainant Finance Company for grant of loan. Cheques were issued by the accused on two occasions for repayment and they were dishonoured by the bank. Proceedings were initiated u/s 138 of Negotiable Instruments Act are already pending. Thereafter, the complaint was filed under Sections 406 and 420 IPC against the accused and there is no allegation of any corrupt practice by the accused and it was held that there was no occasion for the complainant to prosecute the case for offences under Sections 406 and 420 IPC.

Reliance is also placed upon Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr. 2000 SCC (Cri) 786, a case u/s 482 of Code of Criminal Procedure for quashing, wherein it was observed that the allegations in the complaint read as a whole not indicating, expressly or impliedly, any intentional deception on the part or the Appellants right from the beginning of the transaction. Since the allegations do not constitute an offence u/s 420 IPC, the proceedings would amount an abuse of process of court and therefore it was quashed. There is no dispute about this principles, but they have no application to the case on hand.

Learned Counsel for the Petitioner also relied on K.P.G. Nair Vs. Jindal Menthol India Ltd., that if there is no allegation in the complaint that the Appellant who was a Director was incharge and responsible to the accused company for the conduct of its working it has to be quashed. It is true that the words of Section 141(1) need not be incorporated in a complaint as magic words but it cannot also be disputed that substance of the allegations read as a whole should answer and fulfil the requirements of the ingredients of the said provision. On the above premise, It is clear that the allegations made in the complaint do not either in express words or with reference to the allegations contained therein make out a case that at the time of commission of the offence the Appellant was incharge of and was responsible to the company for the conduct of its business. But so far as this case is concerned, there are clear averments in the complaint itself that the accused had disappeared and never repaid the amount. The question whether they were available or disappeared is a matter that can be ultimately established only after evidence.

Learned Counsel for the Respondent relied on the decision in Rajesh Bajaj Vs. State NCT of Delhi and Others, that if averments in complaint prima facie make out a case for investigation, the High Court cannot quash the complaint merely because one or two ingredients of the offence have not been stated in detail. 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 complaint should state 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. The averments that the Respondent after receiving the goods had sold and still he did not pay the money and such averments would prima facie make out a case for investigation by the authorities. If viewed from this angle coupled with the averments made in the complaint. I am of the view that there are grounds to proceed further against the Petitioners and the grounds now stated by the Petitioners can be agitated in the course of trial. Hence, these points are answered accordingly.

For the reasons stated above, both the revision petitions fail and accordingly they are dismissed. It is open to the Petitioners to agitate the same points before the trial court and the court below is directed to dispose of the cases as early as possible uninfluenced by any of the observations made herein. Consequently connected miscellanenous petitions are also dismissed.