Madras High Court
Prakash Bachraj Jain vs Mani Textile Traders on 15 April, 2008
Author: K.N. Basha
Bench: K.N. Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.04.2008 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA Crl.O.P.No.19816 of 2005 & Crl.M.P.No.5770 of 2005 1. Prakash Bachraj Jain 2. Bharat Babulal Jain .. Petitioners Vs. Mani Textile Traders, rep. by its Partner, Babu (a) Boommannan, Door No.139/C-2, Anangoor Road, Komarapalayam, Tiruchengodu Taluk, Namakkal District. .. Respondent/ Complainant * * * Prayer : Criminal Original Petition filed under Section 482 Cr.P.C. to call for the entire records in respect of C.C.No.267 of 2003 on the file of the learned Judicial Magistrate, Tiruchengodu, and quash the same. * * * For Petitioners : Mr.D.Rajagopal For Respondent : Mr.N.A.Nisar Ahemd O R D E R
The petitioners have come forward with this petition seeking for the relief of quashing the proceedings initiated against them in C.C.No.267 of 2003 on the file of the learned Judicial Magistrate, Tiruchengodu.
2. The learned counsel for the petitioners submitted that the petitioners have been arrayed as A-1 and A-2 and they have been implicated in this case on a private complaint preferred by the respondent herein for the alleged offence under Sections 420, 409 and 506 (ii) IPC and the case is pending in C.C.No.267 of 2003 on the file of the learned Judicial Magistrate, Tiruchengodu.
3. It is submitted by the learned counsel for the petitioners that the allegation against the petitioners is to the effect that the respondent/complainant said to have supplied textile goods on the basis of the orders given by the petitioners during the period between 08.01.1997 and 16.03.1997 on credit basis believing the promise made by A-1 and A-2 that they would pay the amount in a short time. It is further alleged that the accused have paid from 10.09.1997 to 18.01.2001 a sum of Rs.50,000/- by cash and Rs.46,082/- by Draft towards the value of the goods and the balance of Rs.15,23,681/- is due from the accused and the accused are going on evading to pay the amount and as a result said to have committed the offence of cheating and misappropriation. It is submitted that the further allegation is that whenever the demand is made for clearing the dues, the petitioners/accused said to have threatened the complainant/respondent herein with dire consequences.
4. The learned counsel for the petitioners contended that the present complaint was preferred by the respondent before the learned Magistrate after his complaint before the police was referred as mistake of fact. It is contended by the learned counsel for the petitioners that the entire allegations contained in the complaint taken it is face value as true, no offence made out against the petitioners neither under Section 409 nor under Section 420 or 506 (ii) IPC. It is submitted that the entire allegations contained in the complaint clearly shows that the matter is of purely a civil dispute and it is mere breach of contract. It is also contended by the learned counsel for the petitioners that even for the allegation of criminal intimidation, there is no definite and specific allegation and there are merely vague and bald allegations made to the effect that the petitioners said to have threatened the complainant/respondent with dire consequences. Therefore, it is submitted by the learned counsel for the petitioners that the complaint is liable to be quashed.
5. Per contra, learned counsel for the respondent vehemently contended that there are specific and definite allegations made in the complaint constituting the offence under Sections 409, 420 and 506 (ii) IPC. It is contended by the learned counsel for the respondent that there is a specific allegation in the complaint to the effect that the petitioners made a promise and representation to the complainant/respondent stating that they would make prompt payment to the supply of goods and thereby induced the respondent/complainant to part with his huge amount, but ultimately failed to pay the amount and committed the alleged offence of cheating and misappropriation. The learned counsel for the respondent would further contend that even for the offence under Section 506 (ii) there is specific allegation to the effect that the petitioners said to have threatened the complainant/respondent with dire consequences, when the complainant made the final demand on 04.10.2001 and as such the petitioners are also to be proceeded for the offence under Section 506 (ii) IPC.
6. I have carefully considered the rival contentions put forward by either side and also perused the impugned complaint in this case.
7. A perusal of the complaint clearly shows that the crux of the allegation is to the effect that there was a business transaction between the petitioners and the respondent and the respondent said to have supplied textile goods to the petitioners during the period between 08.01.1997 and 16.03.1997 on credit basis believing the promise made by the petitioners, namely, A-1 and A-2 that they would pay the amount in a short time, but they have paid a portion of the amount and after that they not paid the balance amount to the tune of Rs.15,23,681/-. Yet another point in the complaint is to the effect that while the respondent/complainant made a final demand for settling the dues, the petitioners said to have threatened the respondent/ complainant with dire consequences. It is pertinent to be noted that the entire allegations contained in the complaint clearly makes it crystal clear that there is a breach of contract. The fact remains even as per the admitted allegation is to the effect that the petitioners, viz., A-1 and A-2 as a matter of fact, paid an amount of Rs.50,000/- and Rs.46,082/- by cash as well as by draft and as such it cannot be stated that there was no dishonest, fraudulent intention on the part of the petitioners even at the inception of the transaction and such being the position, the commission of offence of cheating not at all arises in this case.
8. The learned counsel for the petitioner also rightly placed reliance on the decision of this Hon'ble Apex Court in Anil Mahajan V. BHOR Industries Ltd. reported in 2006 (1) SCC (Cri.) 746, wherein the Hon'ble Apex Court has held that, "... From mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence."
9. The above position of law laid down by the Hon'ble Apex Court is squarely applicable to the facts of the instant case as in this case also, as already pointed out, the petitioners said to have availed credit facility for the purchase of textile goods and as a matter of fact, they have been paid some portion of the amount and only the balance amount is due and as such it is a clear case of breach of contract and the same will not give rise to any offence of cheating or misappropriation. Therefore, this Court has no hesitation to hold that if the allegation contained in the complaint taken in its entirety to be true, no offence is made out much less the offence under Section 420 IPC or under Section 409 IPC.
10. As far as the alleged offence under Section 506 (ii) IPC is concerned, it is pertinent to be pointed out that there is a vague and bald allegation to the effect that the petitioners also said to have threatened the respondent/complainant with dire consequences, when the respondent/complainant made the final demand to clear the dues.
11. This Court in Noble Mohandass v. State reported in 1989 Cri.L.J.669 has held that, "7. As far as the offence under Section 506 (2) is concerned, the learned counsel for the revision petitioner contended that the threat was not a real one, that it was of the kind of words which are currently and frequently used by people when they are angry and that further the threat was not spoken to by P.W.3 and P.W.4 who by that time had already come to the scene of occurrence. It is, in fact, found from the records that the threat would have been lashed out after P.Ws.3 and 4 came to the place and separated both the husband and wife. Therefore, the evidence of P.W.1 should have been corroborated by the evidence of P.W.3 and P.W.4 who were necessary witnesses to the occurrence. Since they did not corroborate the testimony of P.W.1 in this aspect, the offence cannot be held to be proved. Further for being an offence under Section 506 (2) which is rather an important offence punishable with imprisonment which may extend to seven years, the threat should be a real one and not just a mere word when the person uttering it does exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. In fact P.W.1 when she filed the complaint to the police officer, did not express any fear for her life nor asked for any protection. Therefore, the offence under Section 506 (2) is not made out."
Therefore, the said decision of this Court is squarely applicable to the facts of the instant case as in this case also there is only vague and bald allegations of threat with dire consequences and as such this Court is of the considered view that even the offence under Section 506 (ii) IPC is not made out on the face of the allegations contained in the complaint. Therefore, this Court is left with no other alternative except to quash the proceedings initiated against the petitioners and accordingly, the proceedings pending against the petitioners in C.C.No.267 of 2003 on the file of the learned Judicial Magistrate, Tiruchengode, is hereby quashed.
12. This petition is ordered accordingly. Consequently, connected Miscellaneous Petition is closed.
gg To The Judicial Magistrate, Tiruchengode