TMI Blog2021 (6) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case is purely civil in nature, which involves a commercial transaction between the petitioners and the defacto complainant and no criminal offence has been made out. It is pertinent to point out that the dispute between the parties, at the most, can be said to be the civil dispute and it is tried to be converted into the criminal dispute. Therefore, this Court is of the opinion that continuing the criminal proceedings against the petitioners will be an abuse of process of law and, therefore, the criminal proceedings are liable to be quashed. Merely because the petitioners have not have paid the amount due and payable under the agreement or even assuming not paid the amount in lieu of one month Notice, this by itself cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.P.No.503 of 2016 - - - Dated:- 7-6-2021 - MRS.V.BHAVANI SUBBAROYAN, J. For Petitioners : Mr.A.Selvendran For Respondent : Mr.S.Karthikeyan Additional Public Prosecutor ORDER The present Criminal Original Petition is filed under Section 482 Cr.P.C.,to call for the records relating to the charge sheet in C.C.No.157 of 2014 on the file of the learned Judicial Magistrate No.1, Virudachalam and quash the same. 2. The allegations levelled against the petitioners, as per the charge sheet is that one Ganesan / defacto complainant, son of Palanirathinam is running a company under the name and style of Grant Export in Virudhachalam and in the said company, the said Ganesan was carrying on business with regard to import a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner, Commercial Tax Officer, Sangagiri were examined under Section 161(3) Cr.P.C., Subsequently, a case was registered and charge sheet was filed in C.C.No.157 of 2014 on the file of learned Judicial Magistrate No.1, Virudhachalam. Seeking to call for the records and quash the same, the petitioners are before this Court. 3. The learned counsel for the petitioners would submit that a pure commercial / contractual transaction has been given a criminal colour only for the purpose to harass the petitioners, which is not legally sustainable. The said transaction, as averred in the charge sheet, is purely borne out by contract dated 23.04.2013 and there is no criminality to attract the offences under Sections 406 and 420 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shna Smelters', in which they would melt the old iron and sell it another company. While that being so, the petitioners had ordered 100 tonnes of Iron and for the same, the petitioners and the defacto complainant entered into a contract and the same was signed by both the parties with consicious state of mind. In total, for the delivery of iron made by the defacto complainant, the petitioners were due for a sum of ₹ 24,22,653/- . Further, on account of Port charges as well as lorry charges, the petitioners had given a cheque for ₹ 1,87,146/- and the petitioners had also handed over 5 cheques each for a sum of ₹ 1,00,000/-. Thereafter, the said cheque, which was given for a sum of ₹ 1,87,146/- as well as two chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is of the opinion that continuing the criminal proceedings against the petitioners will be an abuse of process of law and, therefore, the criminal proceedings are liable to be quashed. Merely because the petitioners have not have paid the amount due and payable under the agreement or even assuming not paid the amount in lieu of one month Notice, this by itself cannot be said to be a cheating and/or having committed offence under Sections 406 and 420 of the IPC, as per Hon'ble Supreme Court [Criminal Appeal No. 1593 of 2018 arising out of SLP (CRL.) No. 1960 of 2018] Vinod Natesan Vs. State of Kerala Ors. 10. For better appreciation of the present case on hand, it is necessary to extract Sections 405, 406 and 420 of IPC:- Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheating or the dishonest intention of the petitioners in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the petitioners did not make payment to the defacto complainant and that the petitioners utilized the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the money / property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the petitioners. It must also be shown that the petitioners dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the petitioners did n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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