M. Munir Ahamed v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.11.2022

CORAM:

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH CRL.O.P.(MD)No.17067 of 2018 and CRL.M.P.(MD)Nos.7558 & 7559 of 2018 M.Munir Ahamed

...Petitioner /Accused No.3

Vs.

1.The State rep. by The Inspector of Police, District Crime Branch, Dindigul, Dindigul District.

(In Crime No.04 of 2016) ... 1st Respondent/Complainant 2.A.Abuthahir ... 2nd Respondent/Defacto Complainant PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the records in C.C.No.149 of 2018 on the file of the Judicial 1/10

Magistrate Court No.II, Dindigul, and quash the same as against the petitioner is concerned.

For Petitioner : Mr.P.Shanmugaraja Sethupathi for Mr.A.Mohan For Respondents : Mr.K.Sanjai Gandhi - for R1 Government Advocate (Crl. side) : Mr.R.Suresh - for R2

ORDER

This petition has been filed by the petitioner/A3 to quash the proceedings pending before the Judicial Magistrate Court No.II, Dindigul, in C.C.No.149 of 2018.

2. The second respondent gave a complaint with an allegation that A2 is known to him and A1, who is the father of A2 was carrying on Real Estate Business. It is alleged that the second respondent was made to invest in the business with a promise that he will get high 2/10

returns and as such, the second respondent is said to have invested a total sum of Rs.22,00,000/- (Rupees Twenty Two Lakhs only).

3. The grievance of the second respondent is that even the amount that was invested by him was not returned back and when he insisted for the same, A1 is said to have given three cheques totally amounting to a sum of Rs.22,00,000/- (Rupees Twenty Two Lakhs only). Thereafter, A1 had executed a power of attorney in favour of the petitioner (A3). On coming to know of the same, the second respondent went and met the petitioner and the petitioner is said to have given an assurance that the amount will be repaid back within a period of 30 days. However, the accused persons went back on their promise and thereby the second respondent was cheated and as such, there was a breach of trust. Based on this complaint, the first respondent police registered an FIR in Crime No.4 of 2016 against three accused persons for offences under Sections 406, 420 and 120B IPC.

4. The investigation was taken up and a final report was filed before the Court below against all the three accused persons for the 3/10

above said offences. Aggrieved by the same, the petitioner /A3 has approached this Court mainly on the ground that there is absolutely no offence made out as against the petitioner and has sought for the quashing of the proceedings insofar as A3 is concerned.

5. Heard, Mr.P.Shanmugaraja Sethupathi, learned counsel for Mr.A.Mohan, learned counsel appearing for the petitioner, Mr.K.Sanjai Gandhi, learned Government Advocate (Crl. side) appearing for the first respondent and Mr.R.Suresh, learned counsel appearing for the second respondent.

6. When the matter was taken up for hearing today, it was brought to the notice of this Court that A2 died during the pendency of the proceedings.

7. The main allegation that has been made against the petitioner can be captured from the statement recorded from the defacto complainant by the investigation officer and for proper appreciation, the same is extracted hereunder :- 4/10

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8. Insofar as the offence of criminal breach of trust is concerned, there must be an entrustment of property or the dominion over the property and the accused to whom the property has been entrusted dishonestly misappropriates the property for his own use. Mere breach of promise, agreement or a contract does not ipso facto constitute an offence of criminal breach of trust, as defined under Section 405 of IPC without there being a clear case of entrustment.

9. A careful reading of the allegations made in the final report as well as the statement recorded from the defacto complainant shows that no property was entrusted to the petitioner and therefore, there is no question of the petitioner committing an offence of criminal breach of trust.

10. Insofar as the offence of cheating is concerned, it is the admitted case of the second respondent that he had invested a sum of Rs.22,00,000/- (Rupees Twenty Two Lakhs only) and this amount was admittedly, handed over only to A1. A1 did not repay back the amount 6/10

and he had appointed the petitioner as his agent to deal with the property. Therefore, the petitioner has come into the scene only at a later point of time and the petitioner is said to have given an assurance that the amount will be repaid back. For constituting an offence of cheating, there must be a dishonest intent, right from the inception. Admittedly, the petitioner was not even in the scene at the time when the amount was handed over by the second respondent to A1. Even assuming that the petitioner gave a promise to the defacto complainant that the amount will be settled, at the best it can only be a breach of promise and it cannot lead to the offence of cheating.

11. In view of the above discussion, this Court is of the clear view that no offence has been made out as against the petitioner / A3 and continuation of the proceedings as against the petitioner will clearly amount to abuse of process of Court which requires the interference of this court in exercise of its jurisdiction under Section 482 Cr.P.C.

12. In the result, the proceedings in C.C.No.149 of 2018, on the file of the Judicial Magistrate Court No.II, Dindigul, is hereby 7/10

quashed insofar as the petitioner/ A3 is concerned and this Criminal Original Petition is accordingly allowed. Consequently, connected miscellaneous petitions are closed.

03.11.2022 Index: Yes/No Internet: Yes/No rm 8/10

To 1.The Judicial Magistrate Court No.II, Dindigul, 2.The Inspector of Police, District Crime Branch, Dindigul, Dindigul District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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N.ANAND VENKATESH, J.

rm CRL.O.P.(MD)No.17067 of 2018 03.11.2022 10/10