(Prayer: Criminal revision filed under Section 397 r/w 401 Cr.P.C against the order passed by the learned Judicial Magistrate VI, Coimbatore, in CMP.No.9856 of 2008 dated 27.11.2008.)
The revision petitioner herein filed a private complaint under Section 200 Cr.P.C., against the respondent herein for an offence under Section 415 read with 417 of IPC. The learned Judicial Magistrate VI, Coimbatore, after recording sworn statement of the petitioner, dismissed the complaint under Section 203 Cr.P.C. Aggrieved by the order passed by the learned Magistrate, the revision petitioner herein has preferred this criminal revision.
2. The gist of the complaint is that the complainant is one of the Founder Trustee of the P.S. Govindaswamy Naidu and Sons Charities, a public charity trust which was established in the year 1926 and a scheme of administration was framed by the Principal Sub Court, Coimbatore in O.S.No.145 of 1935 by its decree dated 29.02.1936. According to the complainant, the decree under Chapter VII has laid down that the Board of Trustees are vested with the duty of the management of the property and funds of the trusts and shall have the full control over the financial charges and that the board shall arrange for the maintenance of proper accounts for the annual and concurrent monthly audit. The accused who is one of the Founder Trustees was elected on 14.11.2005. as Managing Trustee for a term of five years. In the meeting held on 14.11.2005, it was also resolved to have an audit committee to discharge certain duties including the above referred duties of the Board. As the accused failed to adhere to the decision of the Board, the complainant along with two other trustees issued a letter dated 27.11.2007 to the accused to call for a meeting of the Board with the subject for constituting an audit committee as per resolution dated 14.11.2005. The accused also called for a meeting of the Board through a notice dated 17.12.2007 and the meeting was to be held on 26.12.2007. In the meeting, The Agenda contained the subject of constitution of Audit committee also. In the meeting held on 26.12.2007, it was resolved to constitute an Audit committee though the accused descended for the constitution of an Audit Committee. It was also resolved to constitute an Audit committee and also frame the functions of the audit committee. It was further decided to convene the audit committee on the quarterly basis and the first meeting was decided to convene in January, 2008. The accused sent a notice of meeting of the audit committee dated 19.01.2008 informing that the meeting will be held on 23.01.2008 at 10.00 a.m., at the Managing Trustee office, Peelamedu, Coimbatore. Subsequently, the accused sent a letter dated 22.01.2008 to all Members of the Audit Committee informing that the Audit Committee meeting scheduled to be held on 22.01.2003 is postponed to a latter date as directed by the Court. According to the complainant, it is a false information that the meeting was postponed as directed by the Court. By a false representation and by postponing the meeting, the members of the audit committee were intentionally induced to omit to do their duties fixed by the Board on 26.12.2007 and thereby the accused cheated the members of the committee. It is the further allegation of the complainant that the accused by making the audit committee defunct derived a wrongful gain by deriving unchecked powers and went to the extent of committing all the Institutions of Higher education under the Charities to the formation of a private body by unauthorisedly issuing a letter dated 06.02.2008 to the Chief Minister of Tamil Nadu without any power to do so.
3. Mr. Ramesh, learned Senior Counsel submitted that the learned Magistrate instead of seeing whether prima facie case is made out or not, erred in going to the merits of the case and dismissing the complaint. The learned Senior Counsel further submitted that the accused had dishonestly made a statement that the audit committee scheduled to be held on 23.01.2008 was being postponed to later date 'as directed by the Court'. The letter forwarded by the accused did not carry out any details about any Court order. The accused had acted only with the dishonest intention of preventing the audit committee from conducting its inspection and it had caused damage to the reputation of the Audit committee.
4. The learned Senior Counsel also relied on the decision of the Honourable Supreme Court reported in AIR 1999 SC 1216 (Rajesh Bajaj vs. State NCT of New Delhi and Others wherein it is observed as follows:
"It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing and 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 v. Bhajan Lal (1992 AIR SCW 237) (supra) 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 (para 109 of AIR):
"We also give a note of caution to the effect that the power of quashing a criminal proceeding 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 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."
12. The High Court seems to have adopted a strictly hyper-technical approach and sieved the complaint through a cullender of finest gauzes for testing the ingredients under Section 415 IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal offence is involved."
The learned Senior Counsel relying on the decision cited supra, submitted that in this case, as per the allegation made in the complaint, the ingredients of the offence under Section 415 IPC are made out against the accused.
5. Mr. S. AShok Kumar, learned Senior Counsel appearing for the respondent submitted that mere vexatious complaint has been filed against the accused by the complainant. The allegations made in the complaint do not constitute any criminal offence and even though resolution was passed by the Board on 22.06.2007 to constitute an audit committee in spite of the opposition by the accused as stated in the complaint itself, the accused has filed a suit before the Court of District Munsif, Coimbatore in O.S.No.158 of 2008 with one of the prayer as to declare that the minutes, the draft resolution passed by the Board on 26.07.2007 in respect of this subject as null and void. An interim application was also filed for consequential injunction and in the said application status quo was ordered and only in pursuance of the said order, postponement notice was sent by the accused. The learned Senior Counsel further submitted that even taking the complaint and the sworn statement of the complainant as it is, it is not brought out by the complainant, as to how damage or harm was caused to the complainant.
6. Mr. Ramesh, learned Senior Counsel submitted by way of reply that even if the status quo was ordered by the Civil Court, the accused had no right to send the postponement notice, since the order of status quo does not prevent the action of the Audit committee.
7. This Court considered the submission made by both parties and perused the records.
8. The complainant and the accused/ The Founder Trustees of the P.S. Govindaswamy Naidu and Sons Charities. The Board of Trustees consists of four founder trustees and five elected trustees. According to the Court decree, the Managing Trustee must be elected by the Board of Trustees from the Founder Trustees. The accused is presently the Managing Trustee of the Charities being elected on 14.11.2005 by the Board of Trustees for the term of five years. It appears that there is some dispute among the Trustees. The main allegation in the complaint is that in the meeting held on 26.12.2007, it was resolved to constitute an Audit Committee and it was also decided to convene the meetings of the audit committee on a quarterly basis and first such meeting was decided to be convened in January, 2008. In pursuance of the said resolution, the accused who is a Managing Trustee sent a notice that the meeting is to be held on 23.01.2008. But subsequently, the accused had sent another letter to the Members of the Audit committee that the scheduled meeting has been postponed 'as directed by the Court'. According to the complainant, there was no direction by the Court for postponing the meeting and the accused had fraudulently acted and given a false information and thereby cheated the members of the audit committee. Along with the complaint, the complainant had annexed a copy of the postponement letter sent by the accused to the audit committee members. Of course in the said letter, no details about the Court proceedings is given. As per the sworn statement of the complainant, the accused gave a false information. Now it is brought to the notice of this Court that a suit has been filed by the accused before the District Munsif, Coimbatore, in O.S.No.155 of 2008 in which the complainant herein is the first defendant. In the interim application in I.A.No.189 of 2008 'to maintain the status quo' has been ordered. The said order has been passed on 21.01.2008 and on that day, one Advocate Mr. P. Sampath undertook to file vakalat on behalf of defendants 1 to 4. The complainant who is the first defendant has filed this complaint only on 12.11.2008. In the said complaint, the complainant has not referred about the suit filed by the accused and also about the interim order passed by the Court. Even in the sworn statement taken on 21.11.2008, the complainant had only stated no details were mentioned about any court proceedings in the postponement letter sent by the accused.
9. Even taking that the status quo ordered by the Court has been misinterpreted by the accused and a postponement letter has been sent, the point for consideration is whether the allegations made in the complaint prima facie satisfy the ingredients of the offence under Section 415 IPC.
10. Section 415 IPC is as follows:
"S.415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation: A dishonest concealment of facts is a deception within the meaning of this Section.
The ingredients of the above Section are as follows:
1. Deception of any person.
2. (a) Fraudulently or dishonestly inducing that person.
(i) to deliver any property to any person; or
(ii) to consent any property to any person; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, any which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
11. In the offence of Cheating, there are two elements - deception and dishonest inducement to do or omit to do something. Mere dishonesty is not a criminal offence. Moreover, to establish the offence of cheating, the complainant must show not only that he was induced to do or omit to do a certain act but that this induced omission on his part caused or was likely to cause him some harm or damage in body, mind, reputation or property - which are presumed to be the four cardinal assets of humanity.
12. The facts alleged in the complaint do not reveal that the accused made a willful misrepresentation of a definite fact with intend to
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defraud, i.e., the accused had willfully misrepresented that the meeting was postponed as per the direction of the Court and that was with an intention to defraud. 13. Though it is alleged in the complaint that the damage was caused to the reputation of charities and Trustees. It is not made clear as to how the postponement of an audit committee meeting resulted in causing damage or harm to the reputation of the charities and Trustees. The damage must be direct, natural or probable consequence of the induced act. The person deceived must have acted in the influence of the deceit and the damage must not be too remote. The loss and damage must be proximate result of the Act. To bring a case within sweep of Section 415 damage or harm caused or likely to be done by the deceit practiced or must be necessarily likely to follow therefrom and law does not taken into account remote possibilities that may flow from the act. 14. As a perusal of the complaint shows that the essential ingredients of the offences alleged are absent and the dispute is only of Civil nature and this Court feels that it is waste of time to proceed further on the complaint and the learned Magistrate has rightly dismissed the complaint under Section 203 Cr.P.C. 15. For the above said reasons, this Court do not find any reason to interfere with the order passed by the learned Magistrate dismissing the complaint and this revision petition is dismissed.