- (1.)(Criminal Original Petition filed under Section 482 of Cr. P. C. praying to call for the records pertaining to the proceedings which is pending trial in C. C. No. 196 of 2003 on the file of the learned Judicial Magistrate No. IV, Coimbatore and quash the same. )Mr. M. Vijayakumar, learned counsel for the petitioner submits that the petitioner has come forward with this petition seeking for the relief of quashing the proceedings initiated against the petitioner for the alleged offence under Sections 406 and 420 I. P. C.
(2.)LEARNED counsel for the petitioner submits that originally a private complaint was preferred by the defacto complainant against the petitioner and the same was pending under Section 156(3) of Cr. P. C. , by the learned Judicial Magistrate No. IV, Coimbatore for a direction to the respondent police to register a case and investigate the same and file a final report. It is submitted by the learned counsel for the petitioner that final report was filed by the respondent police on 3. 11. 2003 for the offence under Sections 406 and 420 I. P. C. and the learned counsel also submits that the allegation against the petitioner is that the petitioner and her husband one Ramesh were running a company in the name and style of "Ansa Consmachems P. Ltd" and the petitioner is a Director. It is also submitted by the learned counsel for the petitioner that the further allegation against the petitioner is that the defacto complainant was appointed as Stockist for Tamil Nadu and an agreement was entered into between them on 7. 8. 1999 and a sum of Rs. 5 lakhs was paid by the defacto complainant as security deposit and it was also represented that the said defacto complainant would get 5% commission for the goods sold and a sum of Rs. 15,000/- could be earned per month. It is further submitted that the said Ramesh issued a receipt for the sum of Rs. 5 lakhs and he asked another Rs. 5 lakhs for making the defacto complainant as a Super Stockist and giving entire business through the defacto complainant. The defacto complainant was not able to pay another amount of Rs. 5 lakhs and further from 7. 8. 1999 to January, 2000 i. e. for a period of six months the turnover was only to the tune of Rs. 3 lakhs and there was no income. It is also mentioned in the complaint that the defacto complainant has sent a notice dated 31. 1. 2000 to the complainant to cancel the agreement dated 7. 8. 1999 and to withdraw herself from the capacity of stockist and also to give back the security amount to her. A reply notice dated 22. 2. 2000 was sent by the accused company. In the notice, it was stated that the security amount would be paid back to her with one percent interest but no money was paid and hence the defacto complainant sent another notice dated 23. 2. 2000 through her lawyer for which the defacto complainant received a reply dated 19. 4. 2002 from the petitioner-accused. Meanwhile, the husband of the petitioner fell ill and the defacto complainant resorted to give a complaint against the petitioner and subsequently, the husband of the petitioner died, pending investigation. It is brought to the notice of this Court by the learned counsel that the respondent police after completion of the investigation filed the final report. 3. LEARNED counsel for the petitioner submits that the entire allegations contained in the complaint and other materials available on record constitutes only a civil dispute and there is no offence of cheating or criminal breach of trust made out. It is also submitted by the learned counsel for the petitioner that the averments and the allegations contained in the complaint and the materials available on record may amount only to a breach of contract and cannot give rise to criminal prosecution for cheating as there is absolutely no material that the accused had dishonest intention at the inception of the transaction. Therefore, it is contended by the learned counsel for the petitioner that no offence is made out either against the petitioner or against her husband. Even the entire materials available on record clearly shows that there was transaction only between the husband of the petitioner and the defacto complainant and the petitioner herein is no way in the picture. Therefore, it is contended by the learned counsel for the petitioner that the proceedings initiated against the petitioner for the alleged offence under Sections 406 and 420 I. P. C is liable to be quashed.
Learned counsel for the petitioner also placed reliance on the decision of the Honourable Supreme Court in Hridaya Ranjan Pd. Verma Vs. State of Bihar reported in 2000 CRI. L. J. 2983 to the proposition that mere breach of contract would not amount to an offence of cheating and further the allegations contained in the complaint should make out the ingredient to the effect that the dishonest intention was even at the beginning of negotiations.

Learned counsel for the petitioner further placed reliance on an yet another decision of the Honourable Supreme Court in Ajay Mitra Vs. State of M. P. Reported in 2003 CRI. L. J. 1249 to the proposition that the allegation made in the complaint do not prima facie disclose commission of the offence of cheating, the proceedings are liable to be quashed and further it is pointed out by the learned counsel for the petitioner that in that case, the Honourable Supreme Court has observed that the accused in the case were not in picture at time when complainant alleged to have spent money in improving bottling plant pursuant to agreement. Learned counsel for the petitioner submits that in the instant case also, admittedly there was an agreement only between the husband of the petitioner and the defacto complainant and the petitioner is nowhere in picture and therefore, the proceedings initiated against the petitioner is liable to be quashed.

Mr. N. Manoharan learned counsel appearing for the defacto complainant contended that there are allegations levelled against the petitioner even in the complaint. It is also submitted by the learned counsel for the petitioner that mens rea of committing offence of cheating cannot be considered at the initial stage before the commencement of trial.

Learned counsel for the second respondent-defacto complainant has placed reliance on the decision of this Court in Meena R. Sampath Vs. The State reported in 2005 (5) CTC 533 to the above said proposition of law.

(3.)LEARNED counsel for the second respondent-defacto complainant has also placed reliance on the decision of the Honourable Supreme Court in Devender Kumar Singla Vs. Baldev Krishan Singla reported in 2005 " 9 SUPREME COURT CASES 15, to the proposition that the essential ingredients for cheating namely, making of a false representation, held, is one of the ingredients and such allegation need not be made in express words and the same may be inferred from all the circumstances including the conduct of the accused in obtaining the property.
Heard the learned Additional Public Prosecutor on the submissions made by the learned counsel for the petitioner.

Have carefully considered the rival contentions put forward by either side and also perused the quash petition and the entire materials available on record including the statement of witnesses recorded under Section 161 of Cr. P. C.