IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 29.04.2008 Coram:- The Hon'ble Mr. Justice R.REGUPATHI Crl.O.P. No.14870 of 2006 A.Cogoulane ... Petitioner (1st/Accused) vs. 1. State by Inspector of Police, Central Crime Branch, Team-II, Egmore, Chennai. 2. Dr.Thirumangai @ Nageswari ... Respondents Petition under Section 482 of the Code of Criminal Procedure to call for the records in Crime No.180 of 2006 on the file of the Sub Inspector of Police, Central Crime branch, Team-II, Chennai, and quash the same. For petitioner : Mr.K.Subramanian, Senior Counsel for Mr.M.Mohammed Shafi. For respondent-1 : Mr.M.Babu Muthu Meeran, Additional Public Prosecutor For respondent-2 : Mr.C.H.Vinobha Gandhi O R D E R The petitioner is one of the accused for offences punishable under Sections 406 and 420 IPC. in Crime No.180 of 2006, registered by R-1/CCB subsequent to the complaint preferred by R-2, the complainant. The complaint was entertained on 02.03.2006 and the investigation of the case was also taken up. The allegations made in the complaint are to the effect that the accused/petitioner, a French National living in France for sometime, was introduced to R-2/the complainant, a Doctor, through one Balaji. The complainant intended to produce a documentary film regarding development of women in India and since she does not possess experience in cine production, she approached the accused for assistance. The accused claimed himself a publisher at London and https://hcservices.ecourts.gov.in/hcservices/ thereby impressed upon the complainant and further, by showing photographs and letters, he made her believe that he gained rich experience and exposure in cine field and also has friends in media & cine circle in London and France. He suggested that with the aid and assistance of a person by name London Balamurugan, a film could be produced rather than documentary and told that the total expenditure therefor would be Rs.50 lakhs, out of which, Rs.25,00,000/- would be contributed by him. Accordingly, it was agreed to shoot a film by name 'Sivan Arul'. The complainant paid a sum of Rs.25 lakhs towards her contribution to make the film. Later, the accused stated that the film 'Sivan Arul' may not be commercially successful and therefore, a film by name 'Koothadi', may be produced, which would come out so successful with huge profit and that, for producing such film, the expenditure would be around Rs.1 crore. The accused had shown three suit-cases and stated that the same contain Rs.50 lakhs sent by London Balamurugan and demanded payment of Rs.25 lakhs more by the complainant. By pledging her family house and raising loans, the complainant gave another sum of Rs.25 lakhs to the accused. On 5th October, 2005, after pooja, shooting of the film commenced. For the purpose of registering the production with Tamil Film Producers Council, the accused obtained signatures of the complainant in some Forms, however, subsequently, shooting was not properly conducted and, when enquired with the accused, he gave improper replies, and on further enquiries, she came to know that the name of the complainant was not at all entered in the Tamil Film Producers Council, shooting of the film has not been continued and the said London Balamurugan is fictitious person created by the accused to defraud and cheat her. Ultimately, the complainant lost Rs.50 lakhs with the accused, resulting in the complaint. 2. Learned senior counsel for the petitioner submits that, prima facie, the offence alleged against the accused is not made out. Even accepting the allegations and averments available in the F.I.R. to be true, at the most, the same would amount to breach of contract. No plausible material has been furnished to substantiate the payments made by the complainant to the accused. To constitute the offence under Sections 420 and 406 IPC., dishonest conversion of the amount given by the complainant must be substantiated and actually, there was no intention for the petitioner to cheat the complainant. An agreement has been entered into between the accused and the complainant and conveniently, there is no whisper about those details in the F.I.R. and thereby, it is quite apparent that material facts have been suppressed. At any rate, the film produced by the accused has been processed upto 15600 ft. and the complainant has been shown as one of the producers; under such circumstances, the offence alleged is not made out. In support of his core contention that the F.I.R. is liable to be quashed, learned senior counsel relied on certain case laws and relevant portions referred to are quoted below:- https://hcservices.ecourts.gov.in/hcservices/ (A) AIR 1960 SC 866 (R.P.Kapur v. State of Punjab} "6. ... where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. " (B) AIR 1973 SC 326 (State of Kerala v. A.P. Pillai) "16. ... To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. " (C) AIR 1988 SC 709 (Madhavrao v. Sambhajirao) " 7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. " (D) 2003 (3) SCC 11 (Ajay Mitra v. State of M.P.) " 16. A guilty intention is an essential ingredient of the offence of cheating. In other words, "mens rea" on the part of the accused must be established before he can be convicted of an offence of cheating. ... 17. ... unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract. .... in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. " 3. Per contra, learned counsel for the complainant submits that the accused induced the complainant initially to part with Rs.25 lakhs and at that time, the idea was to produce a film titled 'Sivan Arul' but subsequently, he made a representation that production of the https://hcservices.ecourts.gov.in/hcservices/ said film may not be commercially viable and instead, producing a film named 'Koothadi' based on the story written by him would fetch immense profits. Subsequently, after shooting was commenced, he showed three suit cases stating that the same contain Rs.50 lakhs given by London Balamurugan and that on the part of the complaint, balance of Rs.25 lakhs must be given as otherwise, it would be impossible to complete production of the Film and only under such circumstances, second instalment of Rs.25 lakhs was made. To her shock and surprise, the complainant came to know that the person introduced by name London Balamurugan is a fictitious person and no such money viz., Rs.50 lakhs, has ever been paid by him. Though it was promised that the name of the producer of the film would be the complainant, registration was not made in her name with Tamil Film Producers Council. Further, the accused/petitioner has created an image as if he is independently producing the film and in the net result, the complainant, who made payment of Rs.50 lakhs, has been cheated. The dishonest intention could be inferred from the conduct of the accused and on the face of the allegations made in the F.I.R., the offence alleged is substantiated and therefore, the learned counsel submits that it is not a fit case to quash the proceedings. He also placed reliance on a judgment of the Supreme Court reported in 2000 Crl.L.J. 1487 (M/s.Medchl Chemicals & Pharma Pvt. Ltd. v. M/s.Biological E. Ltd.) wherein, it has been held as follows:- " 17. ... The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but 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 an 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. ..." 4. Learned Additional Public Prosecutor submits that the https://hcservices.ecourts.gov.in/hcservices/ investigation of the case was taken up on 03.03.2006, the accused came to be arrested, several incriminating documents have been recovered from him, witnesses have been examined and investigation of the case is under progress. Though bail application filed by the petitioner was dismissed by the Sessions Court, subsequently, relief was granted by the High Court on 22.03.2006. After release of the petitioner on bail, the present petition has been filed and thereby, the progress of the investigation is stalled. Moreover, prima facie materials are available against the accused and that being so, this is not a fit case to quash the proceedings at the initial stage. 5. I have perused the materials available on record including the F.I.R. On a careful perusal of the F.I.R., I find that prima facie materials are available to constitute the offence alleged. Further, during the course of investigation, incriminating materials have been secured to establish the complicity of the accused in the offence alleged. When investigation is at the initial stage and after registration of the F.I.R., certain incriminating materials have been collected; before the investigating officer could conclude the process and come to a conclusion one way or the other, entertaining the present petition to quash the proceedings would not be a proper exercise. Repeatedly, the Supreme Court has discouraged such practice in umpteen number of its judgments. In the peculiar facts and circumstances of the case, the investigation must be allowed to continue and reach its final stage so as to arrive at a logical conclusion either way. In the decision reported in 1992 Crl.L.J. 3450 (M/s.Jayant Vitamins Ltd., v. Chaitanyakumar), it has been categorically held that the investigation into an offence is a statutory function of the police and the superintendence thereof is vested in the State Government and the Court is not justified without any 'compelling and justifiable reason' to interfere with the investigation. The observation of the Apex Court in Rajesh Bajaj v. State NCT of Delhi and others (1992-2-L.W. (Crl.) 649) is very much relevant and the same is extracted below:- " 8. ..... For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana vs. Bhajan Lal this court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder: " We also give a note of caution to the effect that the power of quashing a criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in https://hcservices.ecourts.gov.in/hcservices/ the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. " (emphasis supplied) Similarly in Trisuns Chemical Industry vs. Rajesh Agarwal (1999 Crl.L.J. 4325), it has been held by the Apex Court that provision incorporated in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence of fraudulent representation and cheating. Admittedly, there is no wholesome denial of the transactions between the parties, for, even according to the petitioner, the complainant has been shown as one of the producers and the film produced hitherto has been processed to a considerable extent. The plea of the petitioner that the dispute involved is of civil nature is hardly a reason for holding that the offence of cheating would elude from such transaction. In the light of the factual situation involved herein and taking note of the aforesaid decisions of the Apex Court, this Court is of the considered view that there is no compelling and justifiable reason to interfere with the investigation and further the information available in the complaint is rather exhaustive and explicit so as to make out the offence alleged against the petitioner herein. In other words, prima facie, the dishonest intention and the resultant act glaringly concur and thereby involvement of the accused in the alleged offences could be presumed without much difficulty. It follows that the present petition cannot be entertained. Accordingly, the Criminal Original Petition is dismissed as devoid of merits. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar JI. https://hcservices.ecourts.gov.in/hcservices/ To 1.The Inspector of Police, Central Crime Branch Team-II, Egmore, Chennai. 2. The Public Prosecutor, High Court, Chennai. +1cc to Mr.M.Mohammed Shafi, Advocate Sr 25318 KLT (CO) km/12.5. Crl.O.P.No.14870 of 2006 https://hcservices.ecourts.gov.in/hcservices/