*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRL.PETITION NO.5735 of 2006 % 19-02-2010 Koppula Ramachandra Rao …..Petitioner And: The State of AP rep., by PP and another …..Respondents. !Counsel for the Petitioners : Sri M. Srinivasa Rao Counsel for the 1st Respondent: Public Prosecutor Counsel for the 2nd respondent: Sri E.V. Bhagiratha Rao <Gist : >Head Note: ? Cases referred: 2000(2) ALT 49 (SC) HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.5735 OF 2006 Date:19.02.2010 Between: Koppula Ramachandra Rao …..Petitioner And: The State of AP rep., by PP and another …..Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.5735 OF 2006 ORDER: This petition is filed by the accused under Section 482 Cr.P.C for quashing proceedings in C.C.No.406 of 2006 on the file of Judicial Magistrate of the First Class, Chintapalli relating to offence punishable under Section 420 I.P.C. It is alleged that the petitioner obtained hand loan of Rs.30,000/- prior to 30.09.2004 and that at the instance of group of elders, the petitioner issued cheque dated 30.09.2004 in favour of the 2nd respondent/defacto-complainant for Rs.30,000/- on State Bank of Hyderabad, Errampeta Branch, Khammam District and that the said cheque was dishonoured. Thereupon, the 2nd respondent filed CC No.226 of 2005 before the Judicial Magistrate of the First Class, Narasipatnam for offence punishable under Section 138 of the Negotiable Instruments Act against the petitioner. Subsequently, at the instance of the 2nd respondent the police filed C.C.No.514 of 2005 against the petitioner in the same Court at Narsipatnam alleging offence punishable under Section 420 I.P.C. After establishment of Magistrate Court at Chintapalli, C.C.No.514 of 2005 was transferred to Chinatapalli Magistrate Court and it was re-numbered as C.C.No.406 of 2006. It is not disputed in this petition that both the criminal cases, one for offence punishable under Section 138 of the Negotiable Instruments Act and the second one for offence punishable under Section 420 I.P.C are maintainable. In fact, C.C.No. 514 of 2005 which was re-numbered as C.C.No.406 of 2006 was filed by the Sub Inspector of Police, Sileru Police Station in Crime No.17 of 2005 which crime was registered on report given by the 2nd respondent. It is contended by the petitioner’s counsel that transaction between the accused and the defacto-complainant being a loan transaction, is primarily a contract and that even if there is any breach of contract, criminal case is not maintainable for offence under Section 420 I.P.C and that remedy of the petitioner is before a civil court. Reliance was placed by the petitioner on Medchel Chemicals and Pharma Pvt. Ltd., v. Biological E. Ltd.,[1] in this regard. It was held therein:- “In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of Sections 418 or 420. Mens rea is one of the essential ingredients of the offence of cheating under Section 420. As a matter of fact illustration (g) to Section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract.” It was further observed therein:- “Simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish and offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import (vide Pratibha Rani v Suraj Kumar (supra)”. Therefore, it cannot be said that simply because there is a civil remedy available, the 2nd respondent is not entitled to resort to criminal proceedings against the petitioner. Both the remedies are co-extensive and are not mutually exclusive. But, approach in both types of cases differ from each other. In the case on hand, the 2nd respondent seems to have not resorted civil proceedings against the petitioner for recovery of the amount alleged to be due. It is contended by the petitioner’s counsel that there is no averment in the charge sheet that the petitioner had Mens rea from beginning of the transaction. Mens rea is not a pure question of law; and it is a mixed question of fact and law. Mens rea has to be inferred from several pieces of evidence and several circumstances surrounding the transaction. Even in cases of offences affecting the human body occurring in Chapter-XVI of the Indian Penal Code not only in F.I.R but also in the oral evidence, the informants as well as the witnesses speak about overt acts of the accused and nothing more. While assessing evidence of witnesses, the Courts cull out Mens rea from the attending circumstances of the case. No informants and no witnesses would say that the offence was committed “with an intention to commit murder” or “knowingly” or “having reason to believe”. In the same fashion, in my considered opinion, even in cases relating to offences against property occurring in Chapter-XVII of the Indian Penal Code, it would be too much for any Court to expect the complainants or the first informants or witnesses to speak that a particular act or omission was done by the accused “with dishonest intention” or “fraudulent intention” etc. After evidence is let in by the prosecution, it is for the Court to deduce Mens r ea if any from evidence of witnesses, documents and surrounding circumstances of the transaction. One cannot be thrown out at the threshold simply because the first informant or the complainant did not allege dishonest or fraudulent intention from inception of the transaction in First Information Report or in private complaint. On a reading of either the First Information Report or the complaint, it is for the Court to come to its own conclusion having regard to all the circumstances of the case whether there was any dishonest or fraudulent intention from beginning of the transaction between the parties or not. In the case on hand, it was specifically stated in the charge sheet that the accused gave cheque fraudulently and dishonestly with a view to cheat the 2nd respondent knowing fully well that there was no sufficient amount in his S.B.Account. Thus, there is sufficient compliance of requirement of Mens rea from beginning of transaction of handing over of the cheque. It is not a case where the 2nd respondent converted a civil matter into a criminal case because of breach of contract between them. Thus, I do not find any valid or legal reasons to interfere with proceedings in the lower Court at this stage. In the result, the petition is dismissed. ____________________________________ SAMUDRALA GOVINDARAJULU,J. Date:19.02.2010. Note:- L.R. Copy to be marked. //By Order/ Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.5735 OF 2006 Date:19.02.2010 Gk. [1] 2000(2) ALT 49 (SC)