Peter J. Dennis vs Galaxy Granite (P) Ltd.

S. Palanivelu, J.—The respondent is engaged in the business of process of manufacturing monuments made out of granites. The petitioner

used to take job work from the said company prepare monuments and supply to the respondent company by Kerala Green raw material supplied

by them.

The petitioner on filing of this Crl.O.P., got an interim stay of the proceedings in C.C. No. 7288 of 2007 on the file of the learned III

Metropolitan Magistrate, George Town, Chennai, on the basis of the complaint laid by the respondent. The respondent filed petition in M.P. No. 3

of 2.007 for vacating interim stay granted by this Court. By consent of the both parties main Crl.O.P. was taken up.

It is the main contention of the petitioner herein that no offence would be made out u/s 406 and 420 I.P.C. On going by the allegations in the

complaint, it is seen that Rs. 50,000/- advance was received by him agreeing to prepare monuments after getting raw materials from the

respondent company. It is further stated that the petitioner delayed the process of preparing monument and with great pains the respondent had to

get them finished and the remaining blocks/slabs and the balance were not returned back and the total loss incurred by the respondent company

would be around Rs. 1,45,000/-.

Learned Counsel for the petitioner further contended that the above said allegation does not attract the provisions of I.P.C, viz., 406 and 420

I.P.C. and hence the case is liable to be quashed by this Court. He also relied upon the decision of the Honourable Supreme Court in support of

his contention in 2002 (1) Crimes 146 (SC) S.W. Palanitkar and Ors. v. State of Bihar and Ors. wherein Their Lordships have held that every

breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation.

The words ''sufficient ground'' used u/s 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused

and not sufficient ground for the purpose of conviction.

He also relied on another decision of the Honourable Supreme Court in 2006 (4) Sup 217 Ram Biraji Devi and Anr. v. Umesh Kumar Singh

and Anr. in which it is held that when the averments on complaint and statements recorded would amount to civil liability inter se parties and the

cognizance taken was an abuse of process of Court and interference was expedient in interest of justice by Court, Complaint and order taking

congnizance were liable to be quashed.

It is the further argued on the strength of the decision reported in 2000 (3) SCC 13 Hridaya Ranjan Pd. Verma and Ors. v. State of Bihar and

Anr. wherein certain principles have been formulated that when ingredients of intentional deception on the part of accused at beginning of

negotiation for transaction neither been expressly stated nor indirectly suggested in complaint, the offence of cheating will not be made out and

hence the FIR is liable to be quashed and that to hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest

intention at the time of making the promise.

To repel the contention of the learned Counsel for the petitioner, learned Counsel for the respondent would submit that the merits of the case

could not be discussed in the proceedings u/s 482 of Cr.P.C. by the High Court which have to be appreciated on the basis of the evidence on

record. His contention is quite acceptable.

The factum of receipt of advance amount by the petitioner as well as the despatch of the finished monuments to the respondent are admitted.

The intention on the part of the petitioner whether he has delayed the despatch of finished monuments to the respondent has any malafide intention

could only be gone on appreciation of oral evidence on record. Only after the parties were examined before the court and on the strength of the

oral evidence alone the intention of the parties could be gathered. This stage is very premature to ascertain the intention of the parties and thus no

ground is made out for quashing the proceedings.

The next point put forth by the learned Counsel for the petitioner is that the court viz., learned III Metropolitan Magistrate, George Town,

Chennai has no territorial jurisdiction to entertain the matter. He contended that the respondent''s company is functioning in Egmore and the

petitioner''s residence is at Mahalingapuram and hence there is no cause of action for the said Court to take cognizance of the offence. The above

contention of the learned Counsel for the petitioner is to the effect that whether any cause of action has arisen within the jurisdiction of the learned

III Metropolitan Magistrate, could be seen only at the time of trial. I do not find any merits in the petition to quash the complaint in CC. No. 7280

of 2007 on the file of the learned III Metropolitan Magistrate, George Town, Chennai and the same is liable to be dismissed.

In fine, the Criminal Original Petition is dismissed.