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IN THE COURT OF THE JUDICIAL MAGISTRATE NO.II,KANCHIPURAM. PRESENT: TR.P.SRIKUMAR, B.Sc.,M.L., M.B.L., Judicial Magistrate No.II, Kanchipuram. Tuesday the 14th day of June2011, Thiruvalluvar Andu 2042 Srikara Varudam Vaigasi Thingal 31st day. CC No. 101/2011 1. Maheshkumar S/o Ekambaram -Vs1. Rajesjkumar Jain Age 25 S/o Sureshkumar Jain 2.Sureshkumar Jain Age 49 S/o Vijayaraj jain 3. Pavunkumar Jain Age 44 S/o Vijayaraj Jain Accused This private complaint filed on 19.05.2011 and coming before me in the presence of Mr.K. Vijayakumar Advocate for the complainant and after hearing the complainant and perusing the documents and having stood over for consideration till this day, this court delivered the following ORDER Order passed under section 203 Cr.P.C. 1.The case of the complainant as seen from his private complaint filed under 200 CrPC: The complainant is doing real estate as well as mobile phone business. He has also contested the parliamentary election in the year 2009 under the Human Rights Protection Welfare Society. The accused who are running a Jewelry shop in the name and style of Suresh Jewelers are known to the complainant for the past 10 years. For the past 5 years the complainant used to give sums of Rs.5,00,000/-, 10,00,000/- to the accused for purchasing gold bars and gold. When the rate of gold increases in the market, the complainant used to sell the gold for a profit through the accused and the accused would take 20% out of the profit. ...Complainant

2 During November 2009 the three accused had come to the complainant and had told him that the gold rates are increasing and asked for Rs.15,00,000/- from the complainant for purchasing gold. On 21.11.2009 the complainant gave the said sum to the accused. On behalf of Suresh Jewelers the 1st accused had given an undertaking in a stamped paper for having received the amount and also a post dated cheque for Rs.15,00,000/dated 21.11.2010 drawn at Axis Bank,Thiruvallur Branch. After three months as the complainant was in need of cash and gold prices were also on a high, he had asked the accused to sell the gold purchased out of his Rs15,00,000/- and give him the cash. But to his shock the accused had stated that they had used the money for their own jewelry shop business. Despite several reminders the accused did not give a proper reply. Later the complainant came to know that the Crime Branch, Vellore District has registered cases in Cr.No.27/2010, Cr.No.29/2010 and Arakonam Town Police has registered a case in Cr.No.301/2010 against the accused and that they had been put behind bars. After the accused came out of jail, the complainant had several times approached them and asked for his money. On 2.1.2011 the three accused had come to the complainant's home and threatened him that he should receive the money as and when they give him, failing which, they would sent the 1st accused to Rajasthan and give a false complaint that this complainant had kidnapped him or kill the complainant with the help of hirelings. Hence this complaint u/s 420, 506(i) IPC has been filed. 2.The sworn statement of the complainant was recorded on 27/5/11 and the case was posted for enquiry under section202 CrPC. On his side the complainant has examined one Balamurugan as Pw1. Heard the submissions made by the complainant through his counsel. 3.It is now for this court to see whether there is sufficient ground for proceeding further against the accused for any offence. While considering the case on hand it is seen that the complainant has alleged that he and the accused who are running a jewelery shop in the name and style of Suresh Jewelers are known to each other. According to the complainant he used to give money in lakhs to the accused for purchasing gold bars and when the market value of gold increases, the gold bars would be sold by the complainant through the accused and the accused would take 20% out of the profit. The complainant has further alleged that on 21.11.2009 the accused had taken Rs.15,00,000 /- from him for purchasing gold and had also

3 executed an undertaking in a stamped paper on behalf of Suresh Jewelers. A Xerox copy of the undertaking has been produced by the complainant. 4.On a perusal of this undertaking it is seen that this undertaking has been executed on behalf of Suresh Jewelers by the 1st accused on a Rs 20/Non Judicial stamp paper. It has been agreed in this undertaking that Rs.15,00,000 /- has been received from the complainant for purchasing gold for his business and that when the gold is sold, 20% of the profit would be taken as service charge (commission) by Suresh Jewellers. The complainant has also averred that the accused have given a post dated cheque dated 21.11.2010 on behalf of Suresh Jewelers for a sum of Rs.15,00,000 /-. A copy of cheque has been produced. On a perusal of this cheque it is seen that this cheque post dated 21.11.2010 has been issued by the 1st accused on behalf of Suresh Jewellers, in favour of the complainant for a sum of Rs.15,00,000 /- . 5. Thus it is seen that the stamped undertaking clearly shows that it is a contract and the whole transaction is a purely civil business transaction between Suresh Jewellers represented by 1st accused and this complainant where by the complainant has given 15 lakhs for purchasing gold and when the gold is sold, out of the ensuing profit to the complainant, Suresh Jewellers would take 20% as it's service charge (commission). Further the issuance of post dated cheque also indicates that it has been issued as security for this business transaction. In this case the complainant has alleged that the accused had refused to return his money despite repeated reminders and had cheated him of his money. Being a business contract, If there is any breach of condition, it is for the complainant to proceed in the civil forum for recovery of his money, based on the stamped undertaking or initiate civil and criminal proceedings based on the cheque issued by the accused. It is also to be noted that transaction has been entered on behalf of Suresh Jewellers but Suresh jewellers the corporate entity is not an accused herein. It is also to be noted that the complainant has not produced any material to show that the 2nd and 3rd accused are a part of this entire transaction. The execution of an undertaking on a stamped paper and issuance of post dated cheque clearly shows that there is no dishonest intention on the side of the accused. It is clear that this is a pure civil transaction and the complainant is trying to given it a criminal colour.

4 6.In this case the complainant has also alleged that on 2.1.2011all the three accused came to his house and threatened that they would send the 3rd accused to Rajasthan and give a false complaint stating that the complainant had kidnapped the 2nd accused. It is also alleged that the accused had threatened the complainant that they would kill him with the help of hired goons. While considering this allegation, it is seen that the complainant is his complaint has stated that when he had asked the accused for his money and they had told him that they had used the money for their business rotation. The complainant has also stated that several times he had asked the accused for his money but they had evaded him and later he came to know that criminal cases have been filed against them in Vellore and Araknonam. The complainant has also alleged that even after they came out of jail he met them several times for his money but they were of no avail. Later, on 2.1.2011 the accused had threatened him. But in his sworn statement the complainant has stated that on 2.1.2011 the accused came to his home and asked for return of the cheque and bond given by them. When the complainant asked for his money they have threatened to kidnap him. 7.Thus it is seen that in the complaint it is alleged that the accused threatened to given a false complaint stating that this complainant had kidnapped the 1st accused but where as in the sworn statement the complainant has stated that the accused threatened to kidnap him. This is totally contrary to his own complaint. Further in the sworn statement the complainant has stated that on 2/1/11 the accused threatened him and after a week he went to Arakonam and enquired about each of the accused separately and then he came to know that they had gone to jail on previous occasions. This is contra to his complaint wherein he has stated that he enquired about the accused and found that they had been to jail for similar offences and later after they had come out of the jail he met them and asked for his money. Later on 2.1.2011 they came and threatened him. Thus it is seen that in his sworn statement he alleges that after a week after the threat by the accused on 2/1/1, he went and enquired about the accused whereas in his complaint he has alleged that he enquired about the accused and later they threatened him on 2/1/11. Thus it is seen that even as regards this claim there is no concurrence between the sworn statement and the complaint. 8.In this case it is also pertinent to note that in his complaint the complainant has not stated as to what had happened to the cheque given by the accused. The complainant has not stated as to whether he had presented

5 it or not and whether it had bounced or not . But in his sworn statement the complainant has stated that he had gone to the bank to present it and that the bank had informed him that Suresh Jewelers had closed their account. The complainant has not produced any bank cheque deposit slip or any other document to show that he had presented the cheque in the bank. The copy of the cheque produced by him also does not indicate that it had been presented in the bank. If the complainant had presented the cheque he could have initiated proceedings u/s 138 of N.I. Act, he has not done so. Hence it is clear that he has not presented the cheque given by accused. 9.In this case the complainant has examined one Balamurugan to substantiate his claim that the accused had threatened him. But neither in his complaint nor in his sworn statement he has stated that Balamurugan was present when the accused threatened him. Further Balamurugan in his deposition does not specify the date and time of the alleged occurrence. Further he has deposed that the accused used unparliamentary words and refused to give money. But the complainant in his complaint has not stated that the accused had used unparliamentary words. The complainant in his complaint has stated that the accused threatened him by saying that they would give a false complaint and also kill him. This is not corroborated by Balamurugan. Further the complainant in his sworn statement has stated that the accused threatened to kidnap him. This averment is also not corroborated by the witness. Thus it is seen that neither in his complaint nor in his sworn statement the complainant has not spoken about the presence of the witness during the occurrence and similarly the witness in his deposition has not corroborated the complaint or the sworn statement of the complainant as regards the threat by the accused. Thus it is clear that the witness does not corroborate the complainants case. 10.Even as regards giving of the complaint to the police, the complainant has stated in his complaint has averred that he enquired about the accused at Arakonam and then the occurrence on 2/1/11 at his home took place. But in his sworn statement he has stated that only after the occurrence on 2/1/11, after about a week, he enquired about the accused at Arakonam and then gave a complaint to the police. Thus it is seen that the complainant has not gone to the police immediately after the alleged occurrence. From the above said discussions it is clear that the alleged threat by the accused is also not prima facie established, to proceed against the accused for offense under 506(2)IPC.

6 11.In this case the complainant has alleged cheating. But it is seen that on behalf of Suresh Jewelers, the 1st accused has given a undertaking in a stamped paper and also a post dated cheque. The complainant has not en cashed the cheque. The undertaking in stamped paper reveals a business transaction between Suresh Jewellers represented by the 1st accused and the complainant. It is a purely a business transaction. When for some reason there is a breach of this business transaction(contract), the complainant has given this complaint by alleging that he has been threatened. The complainant's own sworn statement and the deposition of his witness Balamurugan do not support his compliant. It is clear that there is no merits in this complaint and this complaint has been filed on the alleged breach of a purely civil transaction. No prima facie case has been made out against the accused for offence u/s 420 or 506(2) IPC. 12.In the light of the aforesaid discussions, it is clear that no prima facie case has been made out to proceed further against the accused for the alleged offences under sec 420, 506(2) IPC or for any other offence. Hence this complaint is dismissed u/s 203 Cr.P.C. Dictated to the Steno-Typist, typed by her directly into the computer, corrected, printed out and pronounced by me in the open court, on this the 14th day of June 2011. JUDICIAL MAGISTRATE NO.II, KANCHIPURAM. List of witnesses on the side of the complainant Pw1. Balamurugan List of exhibits on the side of complainant : Nil

JUDICIAL MAGISTRATE NO.II, KANCHIPURAM.