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TMI Blog2020 (10) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... ned back within 5 months. Believing the words till October 2007, the 2nd respondent paid a sum of Rs. 55 lakhs to the petitioner by way of cash and cheque. On receipt of the same, the petitioner assured that he will give back the money within five months and also represented that he was having many properties at T. Nagar, Porur, OMR-Poonjeri Village, Vaisahvakkan, Hyderabad. During March 2008, the 2nd respondent approached the petitioner and asked for return of his money Rs. 55 lakhs, the petitioner promised to repay the amount within short time, but he did not do so. 3. Further, the petitioner made request for money of Rs. 45 lakhs and promised that both earlier borrowings and the money received now would be repaid within six months. Believing the words, the 2nd respondent paid another Rs. 45 lakhs during February and April 2008. Thereafter, when the 2nd respondent approached the petitioner for return of money, the petitioner evaded the payment and the 2nd respondent regularly visited the office and residence of the petitioner, but whenever he approached, the petitioner was giving one reason or other, dragging and evading repayment of debts. 4. The petitioner informed that one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st respondent intensified search and finally, arrested the petitioner on 27.02.2015 at the early hours. On the same day, the petition for Anticipatory Bail in Crl.O.P. No. 4821 of 2015 was listed and when it was taken up for hearing at about 01.00 p.m., the 1st respondent informed the Court that since the petitioner was arrested, the Anticipatory Bail petition becomes infructuous. On 27.02.2015 at the late evening hours, the petitioner was produced before the learned XI Metropolitan Magistrate, Saidapet, Chennai and remanded to judicial custody. The petitioner moved a bail petition in Crl.M.P. No. 775 of 2015 before the learned Principal Sessions Judge, City Civil Court, Chennai and the same was dismissed on 07.03.2015. Subsequently, the petitioner preferred bail petition before the learned Principal Sessions Judge, City Civil Court, Chennai in Crl.M.P. No. 3972 of 2015. The learned Sessions Judge, by order dated 12.03.2015 granted bail to the petitioner and he was in confinement till 13.03.2015. 7. The learned counsel for the petitioner further submitted that a plain reading of FIR would go to show that the complaint has been given for the purpose of recovery of money. The 2nd re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no mention about the petitioner conspired with any other person. Hence, the offence of conspiracy would also not arise. 9. The admitted case of the 2nd respondent is that he extended a loan of Rs. 90 lakhs and the same was not repaid. The mother-in-law of the 2nd respondent Ms. D.B. Bullamma filed a Civil Suit in C.S. No. 385 of 2015 during 2015 before this Court, in which, she admitted that the petitioner received Rs. 25 lakhs on 01.04.2007, for which, he executed 8 Demand Promissory Notes and he paid interest upto 31.03.2009 and he has not made any payment till 24.03.2012, but on 24.03.2012, the petitioner paid some interest amount, totally paid Rs. 1.25 lakhs. This assertion is made in the pleadings filed in the Civil Suit, to overcome the limitation. Subsequent payments and alleged endorsement are shown. It is admitted by the 2nd respondent's mother-in-law that the 2nd respondent preferred a complaint and the same was registered in Crime No. 70 of 2015 against the petitioner. The eight Demand Promissory Notes dated 01.04.2007 are produced in the Civil Suit in C.S. No. 385 of 2015 and the copy of FIR in Crime No. 70 of 2015. Likewise, the 2nd respondent's son V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Thus, the 2nd respondent to get over the limitation, made a criminal complaint claiming that the petitioner paid some interest and made endorsement in the demand draft on 24.03.2012 to give life to the Demand Promissory Notes, which became time barred. 10. The Hon'ble Apex Court and this Court, time and again held that the police cannot be used as a collection/recovery agent to recover money. The admitted case of the 2nd respondent that he gave loan amount to the petitioner for interest, for which Demand Promissory Notes were obtained. Thus, a civil proceedings has been given in a criminal colour and the 2nd respondent with his contacts and connections, used the 1st respondent as a collection agent. 11. The learned counsel for the petitioner filed additional typed set, in which, it is seen the cases pending against the petitioner, the plaint copy in C.S. No. 385 of 2015 filed by the mother-in-law of the 2nd respondent is being stoutly defended by the petitioner. The learned counsel for the petitioner has filed his written arguments and particulars of the cases pending against the petitioner and plaint copy in O.S. No. 538 of 2016 filed by the 2nd respondent's son is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The cases referred by the 2nd respondent are all of the year 2009 to 2011, only to cause prejudice, these cases have been referred. The petitioner to his credit has got 43 cases pending against him, of these 43 cases, only one criminal case is pending trial in C.C. No. 538 of 2011, on the file of the VI Additional Chief Metropolitan Magistrate Court, Nampally and two civil cases in C.S. Nos. 27 & 450 of 2015 on the file of this Court, in all the other cases, the petitioner was acquitted. 14. Thus, in support of his complaint dated 21.02.2015, the 2nd respondent failed to produce any documents to the 1st respondent Police. In view of the above facts, the FIR against the petitioner is proved to be initiated manifestly attended with ulterior motive and prayed for quashing. 15. In support of his contention, the learned counsel for the petitioner relied on the following citations:- * The learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Apex Court in the case of "Inder Mohan Goswami and another Versus State of Uttaranchal and others reported in (2007) 12 SCC 1", to emphasis the scope and ambit of the Court's power under Section 482 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , having several cases against him. The petitioner, initially, started his carrier as a film financier, later turned into a producer and started film production company in the name of 'Kanakarathna Movies'. The petitioner, by cheating several persons, acquired several properties at T. Nagar and other places in Chennai and near Mahabalipuram and in the State of Andhra Pradesh. 17. The learned counsel for the 2nd respondent submitted that petitioner was convicted in C.C. No. 135 of 2011 by the learned Special Judicial Magistrate of I Class for Prohibition and Excise, Kurnool for one year and to pay a fine of Rs. 10,000/- for offence under Section 138 of the Negotiable Instruments Act, 1881. The charge sheet in C.C. No. 538 of 2011 is pending against the petitioner before the learned VI Additional Chief Metropolitan Magistrate, Nampally, for offence under Sections 420, 406 and 506 r/w 34 IPC. The petitioner to his credit has got 43 cases pending against him. 18. It is further submitted that on registration of FIR, the petitioner had approached this Court and got interim stay. Due to which, the investigation could not be continued and prayed for dismissal of the quash petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d along with the plaint as documents. In the complaint, it is admitted that the transaction between the petitioner and the 2nd respondent is a commercial loan transaction. The civil proceedings are filed based on the Demand Promissory Notes and in the criminal complaint, the same Demand Promissory Notes are the basis. The admissions made by the 2nd respondent in the complaint are quite opposite to the admissions made in the plaint, filed in the civil proceedings. 23. The Hon'ble Apex Court and this Court had time and again held that the Police should not act and should not be used as collection/recovery agent for commercial transaction between the parties. It is admitted that civil proceedings are pending between the petitioner and the 2nd respondent and his family members for the same transaction. The entire case of the 2nd respondent is that the petitioner while receiving loan, executed Demand Promissory Notes and thereafter, failed to make the payments. The dispute between the parties is consequently a civil wrong. 24. A mere breach of a promise, agreement or contract does not, ipso facto, constitute a criminal breach of trust, without there being a clear case of entrustme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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