S.P. Velayutham vs State

R. Regupathi, J.—The petitioner is A-2 in a case, pending investigation in Crime No.539 of 2006, registered for offences punishable under Sections 406 and 420 IPC.

The genesis of the case, which led to the filing of the present petition are as follows:

a) The prosecution case is that the de-facto complainant entered into an agreement for purchase of the property of the petitioner, which was valued and fixed at Rs. 11 crores and by way of advance a sum of Rs.1.5 Crores was given by cheque and Rs.7 lakhs by way of cash. It is subsequent thereto, the defacto complainant, on coming to know that the petitioner had entered into similar such agreements with one M/s.Lancor Properties and had received Rs. 16 lakhs from them, demanded repayment of the sum given by them.

b) Subsequently, after discussion between the parties, a memorandum of cancellation of the agreement was entered into on 02.07.2005, wherein it has been agreed that the petitioner shall refund the advance received to the defacto complainant. It has been further agreed to pay interest at the rate of 12% per annum on or before 15.09.2005 and by way of security, post dated cheque bearing No.223147 dated 16.09.2005 drawn on DTI Bank for a sum of Rs.1.65 crores was given to the defacto complainant. On presentation of the cheque, it was returned unpaid with an endorsement "referred to Drawer". Thereafter on 14.11.2005 the de-facto complainant preferred a private complaint u/s 138 of the Negotiable Instruments Act before the learned XXIII Metropolitan Magistrate, Saidapet, Chen-nai-15 and the same was taken on file as C.C.No.1718 of 2006.

c) Notwithstanding to the above, the defacto complainant has prefered another complaint for offences under Sections 420 and 406 IPC. on the same set of allegation and it is pending investigation in Crime No.539 of 2006 on the file of the respondent police. Hence, the present petition to quash the proceedings.

Learned counsel for the petitioner submits that initially an agreement was entered into on 23.04.2005 and it was subsequently cancelled on 02.07.2005. On 14.11.2005, a private complaint has been filed for offence u/s 138 of the Negotiable Instruments Act. While the said private complaint is pending, suppressing several contemporaneous facts, the present complaint has been given on 05.07.2006, on the same set of allegations and the same has been entertained and registered by the respondent police in the above said crime.

The contention of the learned counsel for the petitioner is that the agreement having entered into has been cancelled and the entire amount including the interest has been paid through a cheque, which on dishonour, was questioned by way of initiating proceedings u/s 138 of the Negotiable Instruments Act and the same is pending, the present complaint entertained by the respondent police at this stage, will be an abuse of process of Court. According to the learned counsel, in view of the cancellation of agreement and issuance of a cheque, a dishonest intention cannot now be attributed against the petitioner and sought to quash the proceedings pending at the FIR stage itself, with the respondent police.

Per contra the learned counsel for the defacto complainant submits that at the time when the agreement was entered into, it was represented that the properties are unencumbered. The defacto complainant was shocked to know about the encumbrance subsecuently. But in the meantime, Rs.1.57 crores has been handed over to the petitioner. The supression of encumbrance shows the dishonest intention at the inception. Though by way of memorandum of agreement, the dispute was settled, the cheque issued therein was dishonoured and the dishonour of the cheque also substantiate a dishonest intention on the part of the petitioner. Further though proceedings u/s 138 of the Negotiable Instruments Act has been filed, as there are materials to substantiate that the petitioner has committed committed IPC offences also, the present complaint has been launched.

The contention of the learned Government Advocate is that when the investigation of the case u/s 420 and 406 IC is under progress and when materials are available to substantiate the same, the investigation of the case cannot quashed at the threshold. The respondent should be given free hand to collect materials and come to a conclusion during the course of the investigation.

I have perused the materials available on record and heard the submissions of either parties, including the defacto complainant.

Admittedly, after entering into a memorandum of cancellation of agreement on 02.07.2005, a cheque has been received by the defacto complainant. On 14.11.2005, a private complaint has been initiated in this regard after the dishonour of the cheque. Even at the time of filing of this private complaint. IPC offences also would have been included in the same private complaint itself. However, 1 do not want to go into merit or demerit of the filing of the complaint before the police at this stage.

As the respondent has taken up the investigation and collected materials, I do not want to disturb the progress of the investigation. Several documents have been furnished before this Court in the typed set to substantiate the defence on the part of the petitioner. While conducting an enquiry u/s 482 Cr.P.C. those defence materials need not be looked into. However, during the course of the investigation, the petitioner is at liberty to produce all the defence materials to the respondent police.

Equally the defacto complainant may also furnish materials to the respondent police to substantiate the dishonest intention alleged by the complainant. Learned counsel for the defacto complainant submits that though a pre condition of deposit of Rs.20 lakhs has been ordered by this Hon''ble Court at the time of grant of Anticipatory bail, because of the pendency of the present petition to quash the proceedings, the same has not been given, which shows the delaying tactics and dishonest intention adopted by the petitioner. The counsel for the de-facto complainant however has given an undertaking not to proceed with the private complaint preferred u/s 138 of the Negotiable Instruments Act. till the completion of investigation in the present case. 11. In such circumstances, the respondent police is directed to complete the investigation within a period of two months from today. While conducting investigation, the respondent may receive all the documentary materials produced by both the parties and reach a conclusion one way or the other within the stipulated period. This time frame has been fixed in consultation with the counsel for both the parties, as well as the respondent police. In such circumstances, the petition to quash the proceedings is dismissed. The respondent police is directed to file final report before XXIII Metropolitan Magistrate, Saidapet, Chennai within a period of two months. Consequently, connected CMP is closed.