IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No.19641 of 2007 and M.P.No.1 of 2007 K.Azhagarasan …. Petitioner Versus K.Palanichamy … Respondent Criminal Original Petition filed under section 482 of Criminal Procedure Code to call for the records in C.C.No.3646 of 2007 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai and quash the same in so far as the petitioneris concerned. For Petitioner : Mr.ARL.Sundaresan, Senior Counsel for AL.Gandhimathi For Respondent : Mr.P.Rathinavel O R D E R The petitioner, who is the second accused in a case pending in C.C.No.3646 of 2007 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai, in respect of alleged offences under Section 420 I.P.C. seeks to quash the proceedings against him. 2. The complaint avers as follows: "3. That during the middle of the year 2003 the complainant decided to enter into real estate business and hence he told his interest to enter into the real estate business to one Mr. G.BABU, Son of G.Gurunathan, Hindu aged now about 35 years, residing at premises bearing Municipal Door No.8, 3rd Street, Thillaigar Nagar, Ennore, Chennai-600 057 who was to known to the complainant for the past five years. And he took the complainant on 15.8.2003 to A1 and he introduced the complainant to A1 signifying his interest in the real estate business. 4. That A1 introduced himself the complainant as a real estate broker and he further told the complainant that there was one property on an extent of forty five grounds, comprised in T.S.No.87, https://hcservices.ecourts.gov.in/hcservices/ Block No.24, adjacent to K2 Ayanpuram Police Station, Ayanavaram, Chennai-600 023, belonging to one Mr.L.KANNAPPA CHETTIAR, Son of Late Lakshmana Chettiar, Hindu, then aged about 68 years, residing at premises bearing Municipal Door No.652, Dr.Ambedkar Street, Raja Rajeswari Nagar, Madipakkam, Chennai-600 091. A1 further represented that the said property of Mr.L.KANNAPPA CHETTIAR had come for sale and the said Mr. L.KANNAPPA CHETTIAR had constituted A1 as his Attorney vide a Deed of General Power of Attorney dated 27.3.2002 registered as Document No.320 of 2002 with the office of the Sub Registrar of Assurances, Mylapore, Chennai authorising him to dispose of the said 45 grounds of land. 5. That A1 also represented to the complainant on the same day, i.e. , on 15.8.2003 itself that he could take the complainant to the residence of his Advocate, A2 herein at premises bearing Corporation Door No.68/3, L.B.Road, Adyar, Chennai-600 020 and would obtain legal opinion from A2 for the said property and if the legal opinion signified that if Mr.l.kANNAPPA CHETTIAR was the absolute owner of the said property, the complainant could further proceed with the transaction with A1. Accordingly on 31.8.2003 A1 took the complainant to the residence of A2 and introduced the complainant to A2, stating that the complainant came for obtaining legal opinion for the said property. On the request made by A1, A2 agreed to give the complainant his legal opinion on the title of the said 45 grounds of land belonging to Mr.L.KANNAPPA CHETTIAR but A2 stated that he would give the legal opinion as if the said Mr.L.KANNAPPA CHETTIAR applied to him for obtaining legal opinion as he was the owner of the said property. Then A2 asked A1 and the complainant to come his residence on 5.9.2003 to get his legal opinion. 6. That on 5.9.2003, A2 furnished his legal opinion to the complainant on the title of the said 45 grounds of land at Ayanavaram, Chennai which categorically stated that the said Mr.L.KANNAPPA CHETTIAR was the absolute owner of the said property. Believing the representations made by A1 and the legal opinion given by A2 to the effect that the said Mr.L.KANNAPPA CHETTIAR was the absolute owner of the said property of 45 grounds of land of Ayanavaram, Chennai, the Complainant entered into an agreement for sale dated 5.12.2003 with Mr.L.KANNAPPA CHETTIAR represented by A1 in his capacity as his Attorney and the complainant paid Rs.10,00,000/- to A1 at the residence of A1. In fact A1 had not introduced Mr.L.KANNAPPA CHETTIAR to the complainant till to date. 7. That thereafter the complainant could not find A1 for years together. And the complainant did not know what to do with the agreement for sale deed 5.12.2003 that he entered into with Mr.L.KANNAPPA CHETTIAR through A1 as Mr.L.KANNAPPA CHETTIAR himself was not known to the complainant in person. 8. That in the meantime on 10.10.2006 the complainant placed an https://hcservices.ecourts.gov.in/hcservices/ order for printing visiting cards with M/s.Print Mart a priniting press at No.10, Ponnangipuram 1st Street, Nungambakkam, Chennai-600 034 owned by one Mr.Ravi. When th4e complainant went to said printing press on 14.10.2006 for collecting the printed visiting cards, the complainant shared with said Mr.RAVI, his agony of lossing Rs.10 lakh to A1 by entering into the said agreement for sale deed 5.12.2003 in respect of the said property at Ayanavaram, Chennai belonging to Mr.L.KANNAPPA CHETTIAR, requesting him to introduce him to a reliable advocate for taking legal action. No sooner than the complainant spoke about the said property, Mr.Ravi told the complainant that the said property was a trust property belonging to "DHARMARAJA PILLAI THANNEER PANDAL CHARITIES" and the said property was not a private property belonging to Mr.L.KANNAPPA CHETTIAR. And Mr.RAVI further said that he himself was one of the trustees of said trust. Then Mr.RAVI asked the Complainant contact him after 15 days. 9. That subsequently at the end of October 2006 when the complainant contacted the said Mr.RAVI at his printing press M/s.Print Mart, he furnished the complainant the following documents. (i) Xerox copy of the Trust Deed dated 8.7.1992 executed by Mr.L.KANNAPPA CHETTIAR, and registered as Document No.498 of 1992, speaking about management of the piece of land on an extent of 5 Acres and 8 Cents comprised in T.S.No.76 to 87 and Block No.24 situated in Ayanavaram Village, Madras, belonging to the said trust viz., "DHARMARAJA PILLAI THANNEER PANDAL CHARITIES"; (ii) Xerox copy of the order dated 6.11.1992 passed by the Hon'ble High Court of Judicature at Madras in W.P.No.6063 of 1992; (iii) Certified copy of the order dated 28.4.2003 passed by the Hon'ble High Court of Judicature at Madras in W.P.No.9899 of 2003; 10. That only after receipt of the above referred documents during the end of October 2006,the complainant came to understand through his advocate (i) that the said property measuring 4 grounds, comprised in T.S.No.76 to 87 and Block No,24 situated in Ayanavaram Village, Madras, which was a part of the land on an extent of 5 Acres and 8 Cents belonging to the said trust viz., "DHARMARAJA PILLAI THANNEER PANDAL CHARITIES" and said Mr.L.KANNAPPA CHETTIAR was not owner of the said property offered for sale to the complainant; (ii) that A1 filed a case in W.P.No.9899 of 2003 on behalf of said Mr.L.KANNAPPAN and A2 appeared for him in that case arguing that the said property was a trust property belonging to "DHARMARAJA PILLAI THANNEER PANDAL CHARITIES"; and (iii) A1 and his Advocate A2 deserved the complainant by their https://hcservices.ecourts.gov.in/hcservices/ deliberate false representation and the false legal opinion respectively,and thereby they induced the complainant to part with the said sum of Rs.10,00,000/- towards advance for entering into the agreement for sale dated 5.12.2003 was said Mr.L.KANNAPPA CHETTIAR through A1. 11. That in the meantime on 1.12.2006 at about 10 a.m. When the complainant was purchasing sweets at Shanthi Sweets, situated opposite to Egmore Railway Station, Chennai-600 008 he saw A1 going towards Hotel Imperial Residency, at No.6, Gandhi Irwin Road, Egmore, Chennai-600008 which was situated adjacent to the said Shanthi sweets. Immediately the complainant ran and caugh A1 and shouted at him stating that he and his Advocate A2 cheated him (the complainant) the said sum of Rs.10,00,000/- by deceiving him to enter into the said agreement for sale by false representation and false legal opinion that the said property was a private property of the said Mr.L.KANNAPPA CHETTIAR deliberately suppressing the fact that it was a trust property belonging to "DHARMARAJA PILLAI THANNEER PANDAL CHARITIES" and hence the complainant asked A1 to return the advance amount of Rs.10,00,000/- with interest at 18% per annum since the date of said agreement for sale dated 5.12.2003 failing which the complainant threatened A1 with immediate police complaint. Then A1 pacified the complainant and took the complainant to his Room No.68, Hotel Imperial Residency, at No.6, Gandhi Irwin Road, Egmore, Chennai-600 008. There A1 admitted that he and his Advocate A2 cheated the complainant the said sum of Rs.10,00,000/- by deceiving him to enter into the said agreement for sale dated 5.12.2003. Hence said A1 requested the complainant to come in the evening to his said hotel room and collect a cheque for a sum of Rs.15,37,500/- towards the cheated amount of Rs.10,00,000/- together with interest at 18% per annum thereon for a period of 2 years, 11 months and 25 days since 5.12.2003 on which date the complainant was cheated. 12. That accordingly on 1.12.2006 in the evening at about 5 p.m. A1 issued the complainant a cheque dated 1.12.2006 drawn on ICICI Bank Limited, West Mambalam Branch, Chennai-600 033 for a sum of Rs.15,37,500/- in his favour. The complainant presented the said cheque dated 1.12.2006 issued by A1 with his Banker M/s. Indian Overseas bank, Mogappair Branch, Chennai, but the same was dishonoured for the reason INSUFFICIENT FUNDS. 13. That the complainant submit that he was deceived by the false representation made by A1 and the false legal opinion given by his Advocate A2 and thereby the complainant was induced to enter into the said agreement for sale deed 5.12.2003 with said Mr.L.KANNAPPA CHETTIAR through A1 and part with the said sum of Rs.10,00,000/- when no such property as described in the agreement for sale belonged to Mr.L.KANNAPPA CHETTIAR and thus A1 and his Advocate A2 have committed the offence of Cheating against the complainant punishable Under Section 420 I.P.C. Read with Section 34 I.P.C. That the https://hcservices.ecourts.gov.in/hcservices/ complainant would not have parted with the said sum of Rs.10,00,000/- by entering into the said agreement for sale if he has known that the said property was a trust property." 3. The Lower Court has taken cognizance of offence under section 420 r/w 34 I.P.C.and issued process to the accused. The petitioner herein being the second accused has preferred the present petition. The contention of the Learned Senior Counsel appearing for the petitioner are as follows: i. The averments as regards this petitioner in the complaint is that he had given his opinion to the effect that the said L. Kannappa Chettiar was the absolute owner of the property. Believing the representation of the first accused as also the said legal opinion, the complainant entered into an agreement of sale dated 5.12.2003 with the said L.Kannappa Chettiar represented by the first accused as Power of Attorney of the said person. The complainant paid Rs.10,00,000/- to the first accused at the residence of the first accused. In his sworn statement, the complainant has stated that the first accused took him to the petitioner herein who rendered his opinion to the effect that L. Kannappa Chettiar was the owner of the property. On consideration of what is stated in the complaint and the sworn statement, it would be clear that no offence under section 420 I.P.C.stands made out against the petitioner. ii. Even if the petitioner had rendered a wrong opinion, that by itself could not give cause of action for offence under section 420 of IPC. The opinion might well be a mistake. Importantly, it would be seen that there is no averment either in the complaint or in his sworn statement, that the petitioner impressed upon the complainant the need to effect payment of consideration or the necessity to enter into an agreement with the first accused, on the basis of his opinion. It was open to the complainant not to act upon the opinion rendered by the petitioner. The action of entering into the agreement and of payment of a sum of Rs.10,00,000/- thereunder was a transaction strictly between the complainant and the first accused and this petitioner had nothing to do with it. 4. Learned counsel for the respondent on the other hand would submit that the petitioner herein has appeared as counsel for the said L.Kannappa Chettiar in W.P.No.9899 of 2003 before this Hon'ble Court and in an affidavit sworn therein by the power agent of the said L.Kannappa Chettiar, it has been stated that in Land Acquisition Proceedings, findings had been given to the effect that the property belongs to the Dharmaraja Pillai Thanneer Pandal, which was managed by the said L.Kannappa Chettiar. Contra to what is stated in the affidavit sworn to by the party for whom he has appeared in the said proceedings, the petitioner has, in respect of the very same property, rendered opinion dated 5.9.2003 informing that the said L.Kannappa Chettiar has got a clear, good and https://hcservices.ecourts.gov.in/hcservices/ marketable title to the schedule mentioned property and he may convey the same. In the circumstances, it was crystal clear that the intention of the petitioner was to deceive and owing to such action, the complainant had been induced to part with the sum of Rs.10,00,000/- to the first accused. When on consideration of such position, the Lower Court had taken cognizance of the case, this Court would not interfere. It is for the petitioner to prove his innocence at the trial. 5. I have considered the rival submissions. 6. It is necessary to reproduce Sections 23, 24, 25, 415 and 420 IPC. "23. "Wrongful gain" -- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled. "Wrongful loss" -- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining Wrongfully. Losing wrongfully -- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property. 24. "Dishonestly" -- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly" 25. "Fraudulently" -- A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. 415. Cheating:- Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation:- A dishonest concealment of facts is a deception within the meaning of this section. https://hcservices.ecourts.gov.in/hcservices/ 420. Cheating and dishonestly inducing delivery of property:-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 7. To constitute dishonesty, it would be necessary for a person to have intention to cause wrongful gain to one person or wrongful loss to another person. Similarly, the person can be said to have acted fraudulently only if he acted with the intention to defraud. In the instant case, where the agreement and payment of a sum of Rs.10,00,000/- by the complainant to the first accused was a matter solely between themselves, where there was no allegation in the complaint that the petitioner had insisted or impressed upon the complainant the need to enter into an agreement or to pay consideration and where the complainant's sworn statement says nothing more than that the opinion was rendered by the petitioner, it cannot be said that the petitioner has acted dishonestly. When that is so, the petitioner cannot be seen to have committed an offence of cheating. The necessary ingredients to constitute an offence of cheating under Section 420 IPC is fraudulent or dishonest deception. The contention of the learned counsel for the respondent that since the petitioner, as the counsel of the said L.Kannappa Chettiar has had sworn in Court an affidavit to the effect that 'Dharmaraja Pillai Thanneer Pandal' is the owner, the opinion rendered by him to the effect that L.Kannappa Chettiar is the owner would necessarily have been made with intent to cheat, though, on prima facie consideration, seems attractive, would not stand deeper scrutiny. Merely because an erroneous opinion has been rendered, it cannot be presumed that the same was done with intent to cheat. Entering upon an agreement pursuant to the opinion and payment of consideration thereunder were matters totally out of the hands of the petitioner. 8. As held by the Hon'ble Apex Court in Pepsi Foods Limited Vs. Special Judicial Magistrate and others reported in 1998 (5) SCC 749. "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be https://hcservices.ecourts.gov.in/hcservices/ sufficient for the complainant to succeed in brining charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 9. In the facts of the case and in view of the decision cited above, this petition shall stand allowed and the proceedings in C.C.No.3646 of 2007 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai shall stand quashed in so far as the petitioner is concerned. Consequently, connected Miscellaneous Petition is also closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar aes To 1.The XI Metropolitan Magistrate, Saidapet, Chennai. 2.-do- Thro The Chief Metropolitan Magistrate, Egmore, Chennai. 3 cc to M/s.AL.Ganthimathi, Advocate, Sr.No.9501 Crl.O.P.No.19641 of 2007 and M.P.No.1 of 2007 AKR {CO} TP/22.4.2010. https://hcservices.ecourts.gov.in/hcservices/