TMI Blog2011 (3) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... d whether the petitioner had fraudulent intention for cheating are the matters for trial. In such view of the matter, this court finds no reason, much less valid reason to interfere with the proceedings at this stage. - CRL. O.P. NO. 5927 OF 2010 M.P. NO. 1 OF 2010 AND M.P. NO. 1 OF 2011 - - - Dated:- 4-3-2011 - G.M. AKBAR ALI, J. G. Rajagopalan and A.S. Balaji for the Petitioner. Ramesh and S. Suresh for the Respondent. JUDGMENT 1. By consent of both sides, the matter has been taken up for final hearing. 2. The petitioners, who are the accused in a private complaint initiated by the respondent before the learned Chief Metropolitan Magistrate, Egmore, Chennai, have filed the present petition seeking a direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, during the course of execution proceedings, an application was filed by the directors of the company contending that the said Sree Rajeswari Mills is a sick industry and the machinery cannot be brought for sale and it is also submitted that the machinery have been hypothecated with the IDBI (Industrial Development Bank of India) and the IDBI filed a suit before this court claiming that they are having the first charge on the machinery since 1987. 6. According to the complainant company, suppressing the hypothecation and a charge with the IDBI as early as 1987, petitioner Nos. 1 to 3, being the directors, with the connivance and collusion of the fourth petitioner/chartered accountant, have created false documents, induced and dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. This would necessarily involve his ascertaining the title of his vendors/vendor and so on. Once it is obvious that the title of the property vested at some stage in a company any prudent purchaser must enquire whether the company itself had the authority and power to sell the property. If the company had created a mortgage in respect of the property in favour of a third party and such mortgage or charge is registered under section 125, the effect of section 126 would operate even on subsequent purchasers." (p. 10) 9. Learned senior counsel also relied on a decision ( Dr. R. Sivaraman v. Registrar, Dr. M.G.R. Medical University ) AIR 1999 Mad. 82, wherein this court held as follows : "If law states that a particular thing must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with and nothing more. The Larger Bench arrived at a definite conclusion that the expression 'hearing the submissions of the accused' cannot mean an opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police." (p. 12) 11. Learned counsel further relied on a decision reported in Trilok Singh v. Satya Deo Tripathi AIR 1979 SC 850, wherein the Apex Court has held : "5. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct." (p. 851) 12. In Moosa Ahmed v. Inspector of Police [2010] 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged that there was default in payment of hire charges and the complainant company invoked the arbitration clause and obtained arbitration award. But while executing the award, they found that the machinery was hypothecated with the IDBI which had the first charge over the machinery. The allegation is that petitioners Nos. 1 to 3 have fraudulently represented and deceived the company that there was no charge over the machinery and the fourth petitioner issued a no lien certificate. 18. It is well-settled that one of the ingredients of cheating as defined in section 415 of the Indian Penal Code, 1860, is existence of a fraudulent or dishonest intention of making an initial promise or existence thereof from the very beginning of forma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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