A COGOULANE Vs. STATE

JUDGEMENT

(1.) THE petitioner is one of the accused for offences punishable under Sections 406 and 420 IPC. in Crime No.180 of 2006, registered by R-1/CCB subsequent to the complaint preferred by R-2, the complainant. THE complaint was entertained on 02.03.2006 and the investigation of the case was also taken up. THE allegations made in the complaint are to the effect that the accused/petitioner, a French National living in France for sometime, was introduced to R-2/the complainant, a Doctor, through one Balaji. THE complainant intended to produce a documentary film regarding development of women in India and since she does not possess experience in cine production, she approached the accused for assistance. THE accused claimed himself a publisher at London and thereby impressed upon the complainant and further, by showing photographs and letters, he made her believe that he gained rich experience and exposure in cine field and also has friends in media & cine circle in London and France. He suggested that with the aid and assistance of a person by name London Balamurugan, a film could be produced rather than documentary and told that the total expenditure therefor would be Rs.50 lakhs, out of which, Rs.25,00,000/- would be contributed by him. Accordingly, it was agreed to shoot a film by name 'Sivan Arul'. THE complainant paid a sum of Rs.25 lakhs towards her contribution to make the film. Later, the accused stated that the film 'Sivan Arul' may not be commercially successful and therefore, a film by name 'Koothadi', may be produced, which would come out so successful with huge profit and that, for producing such film, the expenditure would be around Rs.1 crore. THE accused had shown three suit-cases and stated that the same contain Rs.50 lakhs sent by London Balamurugan and demanded payment of Rs.25 lakhs more by the complainant. By pledging her family house and raising loans, the complainant gave another sum of Rs.25 lakhs to the accused. On 5th October, 2005, after pooja, shooting of the film commenced. For the purpose of registering the production with Tamil Film Producers Council, the accused obtained signatures of the complainant in some Forms, however, subsequently, shooting was not properly conducted and, when enquired with the accused, he gave improper replies, and on further enquiries, she came to know that the name of the complainant was not at all entered in the Tamil Film Producers Council, shooting of the film has not been continued and the said London Balamurugan is fictitious person created by the accused to defraud and cheat her. Ultimately, the complainant lost Rs.50 lakhs with the accused, resulting in the complaint.

(2.) LEARNED senior counsel for the petitioner submits that, prima facie, the offence alleged against the accused is not made out. Even accepting the allegations and averments available in the F.I.R. to be true, at the most, the same would amount to breach of contract. No plausible material has been furnished to substantiate the payments made by the complainant to the accused. To constitute the offence under Sections 420 and 406 IPC., dishonest conversion of the amount given by the complainant must be substantiated and actually, there was no intention for the petitioner to cheat the complainant. An agreement has been entered into between the accused and the complainant and conveniently, there is no whisper about those details in the F.I.R. and thereby, it is quite apparent that material facts have been suppressed. At any rate, the film produced by the accused has been processed upto 15600 ft. and the complainant has been shown as one of the producers; under such circumstances, the offence alleged is not made out. In support of his core contention that the F.I.R. is liable to be quashed, learned senior counsel relied on certain case laws and relevant portions referred to are quoted below:-

(3.) I have perused the materials available on record including the F.I.R. On a careful perusal of the F.I.R., I find that prima facie materials are available to constitute the offence alleged. Further, during the course of investigation, incriminating materials have been secured to establish the complicity of the accused in the offence alleged. When investigation is at the initial stage and after registration of the F.I.R., certain incriminating materials have been collected; before the investigating officer could conclude the process and come to a conclusion one way or the other, entertaining the present petition to quash the proceedings would not be a proper exercise. Repeatedly, the Supreme Court has discouraged such practice in umpteen number of its judgments. In the peculiar facts and circumstances of the case, the investigation must be allowed to continue and reach its final stage so as to arrive at a logical conclusion either way. In the decision reported in 1992 Crl.L.J. 3450 (M/s.Jayant Vitamins Ltd., v. Chaitanyakumar), it has been categorically held that the investigation into an offence is a statutory function of the police and the superintendence thereof is vested in the State Government and the Court is not justified without any 'compelling and justifiable reason' to interfere with the investigation. The observation of the Apex Court in Rajesh Bajaj v. State NCT of Delhi and others (1992-2-L.W. (Crl.) 649) is very much relevant and the same is extracted below:-