R VELUSWAMY Vs. STATE

JUDGEMENT

(1.) THIS petition under Section 482 Cr.P.C has been filed by R.Velusamy, the sole accused in Cr.No.402 of 2005, now pending on the file of the learned Judicial Magistrate No.I, Namakkal. The criminal proceedings launched against the petitioner in the above said calendar case for alleged offences under Sections 420 and 402 IPC, is sought to be quashed on the ground that the complaint and continuation of the criminal proceedings is an abuse of process of Court.

(2.) THE facts leading to the filing of the petition can be briefly stated as follows:- THE petitioner herein is a Transport operator having a transport contract with Bharat Petroleum Corporation Limited, Chennai. THE second respondent herein is also a transport operator owning a tanker lorry bearing Registration No.KA-21-4665 and he did not have a direct contract with the Bharat Petroleum Corporation Limited, for transport of bulk quantities of LPG. As such, the petitioner and the second respondent entered into a contract between themselves, by which the above said tanker lorry was allowed to be used by the petitioner for the transport of LPG for Bharat Petroleum Corporation Limited to various filling stations in consideration of the petitioner agreeing to pay 90% of the transport charges received by the petitioner from Bharat Petroleum Corporation Limited after deducting 10% of the transport charges for the LPG transported through the tanker lorry of the second respondent bearing Registration No.KA-21-4665. In accordance with the terms of the said agreement, the above said tanker lorry of the second respondent was used by the petitioner from January 2000 to July 2000 to transport 18 consignments of LPG. According to the second respondent/complainant, the total transport charges received by the petitioner from Bharat Petroleum Corporation Limited for the transport of the above said 18 consignments using the tanker lorry of the second respondent was Rs.8,81,620/- out of which, he had to pay a sum of Rs.7,93,458/-, as 90% in accordance with the terms of the agreement, but, However, the second respondent was paid by the petitioner, a sum of Rs.7,38,961/- alone and there remained a balance of Rs.54,497/-. Contending that the petitioner with dishonest intention induced the second respondent to allow the petitioner to use the tanker lorry of the second respondent for the purpose of transporting LPG and thereafter withheld a part of the amount payable as per the agreement to the second respondent as amount payable out of the transport charges received from Bharat Petroleum Corporation Limited, towards the transport charges for the transport of LPG through the tanker lorry belonging to the second respondent and thereby the petitioner had committed the offences of cheating and criminal misappropriation punishable under Sections 420 and 403 IPC respectively. Based on the said complaint, a case was registered on the file of Namakkal Police Station as FIR No.810 of 2004 and after investigation, the Sub-Inspector of Police, Crime, Namakkal Police Station submitted a final report against the petitioner herein, alleging commission of the above said offences. THE same was taken on file by the learned Judicial Magistrate No.I, Namakkal on the file of the said Court as C.C.No.402 of 2005. Thus, having been implicated in the above said criminal case, the petitioner herein has approached this Court for quashing of the said criminal proceedings on various grounds set out in the criminal original petition.

(3.) THE learned counsel for the petitioner, pointing out the above said facts viz., the nature of contract between Bharat Petroleum Corporation Limited and the petitioner and the nature of agreement between the petitioner and the second respondent, argued that there was no question of entrustment of money belonging to the second respondent by anybody to the petitioner which is the sine qua non for prosecuting for criminal misappropriation under Section 403 IPC. It is also the contention of the learned counsel for the petitioner that for prosecuting a person for cheating under Section 420 IPC, the person sought to be prosecuted should have deceived by fraudulently or dishonestly inducing the person so deceived, to deliver any property or to do anything, which he would not do or omit to do, if they were not so deceived. THE learned counsel contended that the fraudulent or dishonest intention to deceive is the foundation for prosecuting a person for the offence of cheating and that such fraudulent or dishonest intention should be at the time of making the representation or promise and that the subsequent inability or omission to honour the promise will not amount to cheating. Moreover, according to the arguments advanced by the learned counsel for the petitioner, there was not even such a dishonest intention developed subsequently in this case, as the existence of a bonafide dispute regarding the amount agreed to be paid is very much patent from the fact that the said dispute was resolved by a competent Civil Court, which granted a decree for a lesser amount than what was claimed by the second respondent and by the fact that the entire amount decreed has been recovered from the petitioner.