Jharkhand High Court
Shri Anand Mahindra, Ramesh ... vs The State Of Jharkhand And Anr. on 17 May, 2006
Equivalent citations: 2006CRILJ4204, 2006 CRI. L. J. 4204, 2006 (3) AIR JHAR R 189 (2006) 3 EASTCRIC 414, (2006) 3 EASTCRIC 414
JUDGMENT D.K. Sinha, J.
1. The Cr.M.P. Nos. 1163 of 2005, 1402 of 2005 and 1403 of 2005 am being disposed of by the common order arising out of common cause of action in relation to Complaint Case No. 73 of 2005 pending in the Court of C.J.M. Hazaribagh for common relief for quashing the cognizance order impugned dated 16.3.2005 passed by the C.J.M. and of the entire criminal proceeding in Complaint Case No. 73/05
2. Briefly stated, the Opposite Party No. 2 Shri Dileep Sonthalia filed the Complaint Case No. 73/05 on 19.1.05 as against as many as 9 accused persons including the petitioners alleging inter alia that pursuant to the advertisement published in "Times of India" dated 9.2.03 the Opposite Party No. 2 paid the membership cost of Rs. 15,100/- as down payment and 24 E.M.I. of Rs. 6,857/- by cheques to the total amount of Rs. 1,79,668/- with interest for 25 years membership of Club Mahindra Holidays to enjoy benefit as a member of the Club/ Mahindra Holidays The complainant requested to book the holidays from 4th of January, 2005 to 8th January, 2005 at Binsar resort and 8th January, 2005 to 10th January, 2005 at Corbett resort with a request that he was entitled for special offer of holidays week However, he upgraded his membership from 'while Season' to 'Red Season (Peak Season) on payment of additional cost of Rs. 20,504 besides, the annual subscription of Rs. 11,769/- When the Complainant/ Opposite Party No. 2 with his wife and two minor children reached Binsar Resort on 4 1.2005 where there was booking for 4 days, he received a very cold treatment and instead of 4 days he was allowed to stay for 3 days only. From there he went to Claridges Corbett Hideway with wife and children where he came to know that the Resort was already given to the 70 Guests of a big Company and he had to wait for more than 4 hours and only thereafter, the accused expressed their inability to provide any accommodation to him with his family, on the false pretext of technical problem. In this manner alter covering a long journey of about 2700 K.M.s he was duped by the said Company and was allowed to enjoy only 3 days out of 4 days at Binsar and the entire 2 days at Corbett Hideway at his own cost.
3. After his return on 11.1.2005 O.P. No. 2 demanded his money back, which was flatly refused by the petitioners and other accused and was intimidated and threatened. On the above background the O.P. No. 2 alleged that it was apparent from their conduct that the Company and its officials were engaged in luring and defrauding people for the sake of illegal earning from the very inception of the constitution of the Company on false promise and undertakings and in this manner they committed offence under Section 406/420 I.P.C. After enquiry the cognizance of the offence was taken on 16.5.2005 under Section 420/120B I.P.C, impugned.
4. With reference to Cr.M.P. No. 1163 of 2005 the learned Counsel for the petitioner submitted that M/s Mahindra Holidays and Resorts India Ltd , a limited Company was incorporated in 1996 under the provisions of Companies Act. 1956 (hereinafter referred to as the Company), the Memorandum of Association, inter alia, stipulated the business of developing Holidays Resorts in the places of tourist interest and market them on timeshare basis as one of the primary business activities of the Company. The Company was promoted by Mr. Arun Kumar Nanda and Mr, Ramesh Ramanathan and on incorporation they formed the Board of the Directors of the Company. Learned Counsel for the petitioner submitted that the petitioner Shri Anand Mahindra was neither the promoter nor a Director of the Company at the time of the incorporation of the Company or any time thereafter
5. Advancing his argument, learned Counsel submitted that membership rules provided for the memner to avail of the holiday in the alloted season of the specified apartmentin any of the mahindra Resorts or Mahindra Associate Resorts , by giving a request for reservation in the prescribed format provided by the Company. The said reservation was on a "First Come, First served" basis subject to availability. The member out of his/her entitlement of 7 days in a year could avail holiday only twice in a year out of which holiday in the weekend could be availed only once subject to issuance of confirmation voucher specifying the time schedule for availing the resorts. In case the Company could not provide holiday in spite of issuance of confirmation voucher it was facilitated thai the Company would provide alternate accommodation and ID the event of default the Company would pay liquidated damages equivalent to 100% of the rent/tariffs that may be charged Under such terms and conditions the members were incorporated in the membership rules as contained in Annexure-3. Admittedly O.P. No. 2 was registered as member of the Company and at that time the petitioner herein was not a member on the Board of Directors of the Company which would be evident from the Annual Returns of the Company submitted in compliance of the statutory requirement for the financial year 2002-03 as Annexure-4.
6. Learned Counsel further submitted and pointed out towards the letter of the Company dated 12.2.2005 as contained in Annexure-5 whereby the Company apologized and sought to redress the same by offering a holiday at the Claridges Corbett Hideway. By Annexing Annexure-6, 6/A with the present petition, the fact has been presented before this Court in supoort of the contention that the petitioner herein was never associated with the said Company at any time and therefore, the cognizance for the offence taken under Sections 420/120B of the 'Pf against the petitioner who was not at all concerned with the Company is absolutely bad in law and not sustainable in the eyes of law which is liable to be set aside and the criminal proceeding against the petitioner at the same time is liable to be quashed.
7. Learned Counsel finally submitted that to assign a criminality to the petitioner merely because the petitioner happens to be a Managing Director of M/s Mahindra and Mahindra Ltd., which is a separate and distinct legal identify from that Company would be preposterous and on this ground alone the complaint deserves to be quashed In the present case the entire complaint is conspicuously silent about any complicity of the petitioner
8. With respect to Cr.M P. No. 1402 of 2005 in relation to the petitioner Ramesh Ramanathan, Managing Director of Mahindra Holidays & Resorts India Ltd. it has been submitted that Rule 7 of the membership Rules provided the obligations ot the Company which may be read as follows:
(i) In case MHRIL does not provide holiday after issuance of confirmation voucher in the allotted Mahindra Resort/Mahindra Associate Resort, MHRIL shall provide alternate accommodation and In the event of default in providing alternate accommodation, MHRIL shall pay liquidated damages equivalent to 100% of the rent/tariff that may be charged by MHRIL to other persons for staying in the allotted Apartment in the allotted destination during the period for which the confirmation voucher is issued.
(ii) The liquidated damages shall be paid by MHRIL to the Member within 30 days of such default.
(iii) Notwithstanding anything stated hereinabove, MHRIL shall not incur any liability to the Member if It is not in a position to fulfill its obligations by reasons of any war, civil commotion, force majeure, act of God or any other notification from any Court of Law or Government.
9. As against the obligation referred to above, the learned Counsel submitted that despite the Company seeking to redress the alleged grievances of the Opposite Party No. 2 in terms of clause 7 of the membership rules and much more, the Opposite Party No. 2 refused to accept the same. Instead the Opposite Party No. 2 preferred a private Complaint before the Chief Judicial Magistrate, Hazaribagh against inter alia the petitioner and others in which cognizance of the offence was taken under Section 420/120B I P.C
10. Admittedly the petitioner is the Managing Director of the Company and to arraigns the petitioner for a penal offence by applying the principle of vicarious liability is de-hors to the criminal jurisprudence. The complaint and the order issuing process are, therefore, bad in law and deserves to be quashed and set aside. The complaint petition is conspicuously silent about any role, which could be attributed to the petitioner for the commission of the alleged offence inasmuch as ex facie The complaint does not contain any allegations required to make out any offence by the petitioner much less offences under Section 420 r/w 120B of the Indian Penal Code and the learned court below ought to have realized that if at all the complaint case disclosed a case which could be redressed only before the Civil Court and consequently the complaint brought about by the Opposite Party in order to harass and pressurize the petitioner, the cognizance taken therein would result in miscarriage of justice.
11. Learned Counsel contended that without admitting arid for the sake of argument the facts stated in the Complaint are true, the same would tantamount to a breach of contract for which the remedy lies befoie the Civil Court.
12. Section 420 of the IPC contemplates a dishonest intention from the inception of a transaction to induce a person and cause wrongful loss to that person. In the present case there is no allegation as such so as to attract an offence under Section 420 I.P.C. and in the present case no sooner had the Company received grievance from the O.P. No. 2, a fair proposal vide letter dated 12.2.05 (Annexure-5) was made to the O.P. No. 2 by the Company by apologizing and offering holiday at the Claridges Corbett Hideaway as redressal in terms of the membership rules In the circumstances, no offence as contemplated under Section 420 I PC can be said to be attracted By accepting the membership of the Company the Complainant/O.P. No. 2 accepted the Membership Rules and in this manner a contractual relationship ensued between the Opposite Party No. 2 and the Company, which were governed strictly by the membership rules of the Company. The membership rules provided for the rights and obligations of the Company as well as that of the Opposite Party No 2. The alleged dispute was sought to be redressed in terms of the membership rules and the contractual obligations between the parties In the present case the Opposite Party No. 2 sought to prosecute the petitioner for a penal offence for the alleged deficiency of service covered in the membership rules. The Complaint is therefore, bad in law and accordingly cognizance of the offence taken therein is liable to be quashed and set aside.
13. With reference to Cr.M P. No. 1403 of 2005 learned Counsel submitted that the "Mahindra Holidays nod Resorts India Ltd" is a Company under the companies Act for the purposes of its business has entered into agreements with several Hotels/ Resorts situated at various tourist destinations to enable the Company to fulfill its business objectives and cater to its members. Such Resorts/ Hotels with whom the Company has entered into an agreement for providing services in terms of the agreement are termed as Mahindra Associate's Resorts. In the present case the Company has a subsisting agreement with M/s Claridges Corbett Hideaway Resort The petitioner No 6 is the Area Resort Manager thereof The membership rules provide for the members to avail of the holiday by giving a request for reservation in the prescribed format provided by the Company and the said reservations were on a "First Come, First Served" basis and subject to availability only. The facts as contained in the Complaint Petition are essentially civil in nature and no criminal offence is disclosed by the complainant. The membership rules provided for the rights and obligations of the Company as well as that of the Opposite Party No. 2 and the alleged dispute which arose was sought to be redressed in terms of the membership rules and the contractual obligations that arose between the party No. 2 and the Company. Adopting the argument in other two cases referred to above learned Counsel submitted on behalf of the petitioner that the Opposite Party No. 2 has sought to prosecute the petitioners for a penal offence for an alleged deficiency of service covered under the membership rules. The dishonest intention and inducement as contemplated in Section 420 IP C. is neither made out nor is discemed from the records. As a matter of fact the bona fides of the petitioners which are crystal clear from the letter dated 12th February, 2005 and which were suppressed by the O.P. No. 2 in his complaint, controverted the stand of the complainant inasmuch as the letter of the petitioners was clear about their intention and their willingness to rectify the alleged lapse along with their benefit to the Opposite Party No. 2 As such it cannot be said by any stretch of imagination that an offence u/s 420 of the Indian Penal Code could be made out.
14. Learned Counsel for the petitioners further submitted that the Supreme Court of India has time and again reiterated that a mere breach of contract cannot be given rise to a criminal prosecution of cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. In the present case considering the stock of situation, a breach of contract cannot he alleged inasmuch as the petitioners have shown their willingness to rectify the alleged lapse, leave apart an offence of cheating, no individual role of the petitioners has been assigned for an offence of conspiracy as contemplated by Section 120B I PC The complainant ought to show the meeting of minds of the accused persons. The complaint is frivolous, vexatious and preposterous and attended by mala fides and the Court in exercise of the power under Section 482 Cr.P.C. may look into the letter dated 12.2.05 which has been intentionally suppressed by the Opposite Party No. 2 and without consideration upon such letter the cognizance of the offence under Section 420/120B has been taken against the petitioners.
15. The Supreme Court of India in State of Orissa v. Debendra Nath Padhi held -
Regarding the argument of the accused having to face the trial despite being In a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's Case.
16. In S.W Palanitkar and Ors. v. State of Bihar and Anr. the Hon'ble Supreme Court of India held:-
Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.
The ingredients in order to constitute a criminal breach of trust are: (I) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonesty misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
17. Further reliance has been placed on a decision the Apex Court in Zandu Pharmaceutical Works Ltd. v. Mohd, Sharatui Hague observed:
The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana V. Bhajan Lai. A note of caution was, however, added that the power nhould be exercised sparingly and (hat too in rarest of rare cases.
18. On the other hand the learned Counsel for the Opposite Party submitted that the members were entitled to stay in any of the Mahindra Resorts and consequently the O.P No. 2 after depositing the membership fee was allotted 4 days stay in Club Mahindra Valley Resorts, Binsar and 3 days stay in Club Mahindra Corbett, for which confirmation letter was issued by the Company, but he was not allowed to tay in the Resort of the Company whereas membership rule in Clause 7, 3, it is clearly mentioned that MHRIL shall not incorporate any liability to the member if it is not in a position to fulfill its obligation by reason of any war. civil commotion, forcemajneure act of God or any other notification from any court of law or Government but in absence of all those happenings the O.P No. 2 was not allowed to stay in both resorts for the scheduled period and reason for the same that after being issued confirmation letter, the accommodation was allotted to some other persons which amounts to cheating with the O.P. No. 2. The Company in (his mannor has not followod their own rules and the conduct of its officials amounts to cheating with the O.P. No. 2 who became the member after depositing the membership fee The intention of the Company and its officials i.e. the petitioners herein was to make money by way of cheating the members like him It is further contented that after due enquiry under Section 202 Cr.P.C. on the complaint petition, having found prima facie case the C.J.M., Hazaribagh took cognizance of the offence against the petitioners, which is legal valid and in accordance with law and does not require any interference by this Court Concluding his argument learned Counsel for the O.P. No. 2 controverted that no letter of the Company was annexed with the complaint before the court below, As a matter of fact it would be evident, the letter dated 8.1.2005 from the Corbett Hideaway addressed to the O.P. No. 2 was brought on the record before the cognizance of the offence was taken by the court concerned.
19. Finally submission has been made that there is no merit in the petitions as brought about under Section 482 Cr.P.C and hence the order passed by the C.J.M., Hazaribagh taking cognizance of the offence under Section 420/120B I.P.C against accused petitioners needs no interference of this Court and the petitions are liable to be dismissed
20. The Opposite Party relied upon the decision in State of Bihar and Anr. v. Shri P.P Sharma and Anr., the Supreme Court of India observed:-
It is thus obvious that 'the annexures' were neither part of the police-reports nor were relied upon by the investigating officer. These documents were produced by the respondents before the High Court along with the writ petitions. By treating 'the annexures' and affidavits as evidence and by converting Itself into a trial court the High Court pronounced the respondents to be innocent and quashed the proceedings. The least we can say Is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the criminal courts. The High Court, under the circumstances, could not have assumed Jurisdiction and put an end to the process of investigation and trial provided under the law.
21. In the same decision the Hon'ble Apex Court further observed that:
The commission of offence cannot be decided on affidavit evidence. The High Court has taken short course" in annihilating the still born prosecution" by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave findings on merits. Grossest error of law has been committed by the High Court In making pre-trial of a criminal case in exercising Its extraordinary jurisdiction under Article 226, After the charge-sheet was filed, the F.l.R. no longer remains sheet anchor. The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence has been made out in the charge-sheets and the First Information Report. It is, therefore, not necessary to consider all the decisions dealing with the scope of the power of the High Court either under Section 482, Cr. P.C. or Article 226 of the Constitution to quash the First Information Report.
22. In the State of Bihar v. Rajendra Agrawalla the Supreme Court observed Bearing in mind the aforesaid parameters if the charge-sheet and the F.I.R. filed in the case In hand am examined and the impugned order of the High Court is tested, the conclusion becomes irresistible that the High Court exceeded its jurisdiction by trying to appreciate the evidence and coming to a conclusion that no offence is made out. On examining the material on record and the impugned judgment of the High Court, we are of the considered opinion that the High Court was wholly unjustified in invoking its inherent power under Section 482 of the Code of Criminal Procedure to quash the cognizance taken inasmuch as the allegation in the F.I.R. aid material referred to in the charge-sheet do make out an offence under Section 414 of the Indian Penal Code.
23. From the facts and circumstances of the case, the rival contentions of the parties it is apparent that the main allegation against the petitioners is of cheating in prosecution of criminal conspiracy, an offence under Section 420/120B I.P.C. in which the cognizance of the offence has been taken by the C.J.M., Hazaribagh.
24. "Cheating" is defined under Section 415 of the Indian Penal Code which speaks;-
Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat."
Explanation.- A dishonest concealment of facts is a deception within the meaning of this section.
The main ingredients of cheating are
1. Deception of any person.
2. (a) Fraudulently or dishonestly inducing that person:
(i) to deliver any property to any person, or
(ii) to consent that any person shall retain any property, or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or Is likely to cause damage or harm to that person in body, mind, reputation or property.
Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which Is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be libible to fine
25. It is settled law that for the purpose of holding a person guilty under Section 420, the evidence adduced must eateblish. beyond reasonable doubt, mens rea on his part. Where the accused charged for cheating pleads negligence and irregularity it is for the prosecute to prove that the act was not negligent or irregu.ar but was deliberate and intentionl The prosecution has to prove every ingredient of the offence in question beyond a shadow of reasonable doubt including the burden of proving the mental state of the accused wherever intention or Knowledge forms one of the ingredients of the offence and that thefect of the accused was intentional.
26. To recapitulate, complainant/Opposite Party No. 2 accepted the offer pursuant to the advertisement published in the "Times of India" and by paying the membership cost he became the Member of the Club Mahindra Holidays under Mahindra Holidays & Resorts India Ltd. ( in short MHRIL) and consequently he booked holidays from 4l" January, 05 to 8th January 05 at Binsar Resort and 8th January, 05 to 10th January, 05 at Corbett Resort by upgrading his membership from white season to Red Season on payment of additional cost. The O.P. No. 2/ Complainant admitted that as against booking for 4 days at Binsar Resort he was allowed to stay there for 3 days only and as against booking of 3 days in the Claridges Crobett Hideaway, no accommodation was given to him on the pretext of technical problem and he had to stay there at his own cost when he denied the amenities as promised and agreed prior to the acceptance of the membership fee. By the letter dated 11.1.2005 when the Complainant/0.P. No. 2 demanded his money back, it was refused by the officials of the Company.
27. The petitioners have filed the following documents on affidavit for the appreciation of contention in support of their petitions, under Section 482 Cr.P.C.
28. Annexure 2 (Cr.M.P. No. 1163/05) Memorandum of Articles of Association of Mahindra Holidays and Resorts India Ltd duly certified by R. Ramanathan, Managing Director. The Xerox copy attached with the said resolution 'indicates that it was incorporated as under Companies Act, 1956 pursuant to the resolution on 29.1.1998 and the certificate was issued on 17th April, 1998 under the seal and signature of Registrar of Company Tamil Nadu. In such Memorandum and Articles of Association the name of the petitionar Anaud Mahinrira does not appear either as Company Director or Executive.
29. Annexure-3 is the Membership rules in which arbitration clause has also been incorporated in the manner that all disputes, differences or questions arising out of this transaction shall be settled as per provision of Arbitration and Conciliation Act, 1996 and venue of such arbitration shall be Chennai City only Clause 7 of such Membership Rules depicts obligations of MHRIL that in case it does not provide Holiday after issuance of confirmation voucher in the allotted Mahindra Resort/ Mahindra Associate Resorts MHRIL shall provide alternate accommodation and in the event of default in providing alternate accommodation, MHRIL shall pay liquidated damages equivalent to 100% of the rent/ tariff that may be charged by MHRIL to other persons for staying in the allotted apartment in the allotted destination during the period for which the confirmation voucher is issued. The liquidated damages shall be paid by MHRIL to the Member within 30 days of such default. Notwithstanding anything stated hereinabove, MHRIL shall not incorporate any liability to the Member if it is not in a position to fulfil its obligations by reason of any war, civil commotion forcernajneure, act of God or other notification from any Court of law or Government
30. The Complainant/O.P.No 2 has certain admissions in his Complaint Petition that against 4 days of booking he was allowed to stay for 3 days at Binsat Resort and from there when he went to the Claridges Corbett Hideaway, he found that the Resort was already booked and allotted to 70 Guests of a big Company and only after waiting for 4 hours, the petitioners who were present there expressed their inability to provide any accommodation on the pretext of technical problem. Though he further stated that as against group of new members reaching there subsequent to his arrival were extended all amenities but in his statement in the Court on S.A. in the question put to him by Court, he admitted that none of the members were provided accommodation on technical ground. The O.P. No. 2 is silent as to on what technical ground he as well as other members were denied accommodation in Claridges Corbett Hideaway
31. The Court in exercise of inherent power after examining the Memorandum and Articles of Association of Mahindra Holidays & Resort India Ltd. (Annexure-2), the Membership Rules (Annexure-3) and the Annual return under the Companies Act, 1956 (Annexure-4) gathered that the petitioner Anand Mahindra was never a part of the Company neither as the Member of Board of Directors nor in any manner associated with the Company for day to day conduct. There is substance in the argument advanced that to assign a criminality to the petitioner, merely because the petitioner happens to be a Managing Director of M/s Mahindra and Mahindra Ltd, which is a separate and distinct legal identity from that of the Company, would be preposterous and on this ground alone the complaint deserves to be quashed so far as it relates to him. In the present case the complainant is conspicuously silent about the complicity of the other petitioners in the alleged offence even there is no material to implicate them by showing meeting of minds to attract the offence under Section 120B IPC for the alleged offence of cheating under Section 420 IP C The Membership Rules of Matnndra Holidays and Resorts India Ltd, (Annexure-3) a part of document which was not produced at the time of filing complaint petition and therefore, the learned C.J.M., Hazaribagh could not take judicial notice to it while taking cognizance of the offence. It has been pointed out particularly Rule 7 which stipulates the obligations of the Company in respect to a default on the part of the Company in providing accommodation and/or alternative accommodation In the present case the O.P. No. 2 had an option to seek invocation of Rule 7 arid claimed the liquidated damages as provided for on account of default of the Company. The Membership Rules further provide a contractual relationship between the Company and the Members as also arbitration clause for reference of dispute under the arbitration and conciliation Act, 1996. However, there is substance in the argument that from reading of the complaint as a whole without adding or subtracting anything therefrom the alleged dispute and/or the allegation appears to be one of deficiency of services if at all and the appropriate forum therefore would be civil forum. The essential ingredients of Section 420 I.P.C. i.e. dishonest intention from the inception of the transaction for inducing a person and causing wrongful loss to him is lacking
32. As regards the other petitioners of Cr.M.P. No. 1402/05 and Cr. M. P. No. 1403/05 they are also covered under the alleged deficiency of services within the Membership Rules. The petitioners have tried to express their bona fides by sending a letter dated 12th February, 2005 to the O.P. No. 2 pursuant to the receipt of his letter expressing anguish, by extending re-credit of two days in his 'Holiday Usage Account' after cancelling two days booking at Corbett with note of apology on behalf of the Company.
33. From the perusal of the entirw facts and circumstances of the case and on the discussions made hereinabove I find that the matter is related to contractual obligations between the parties under cover of Membership Rules especially the Rule 7 and the Complainant/O.P. No. 2 failed to bring about material in his Complaint Petition or on the basis of any document attached with the Complaint Petition that the petitioners had fraudulent or dishonest intention al the time of making promise or entering into the contract since inception for want of which the criminal prosecution is not sustamable Similarly contractual obligations cannot be enforced by invoking Section 420 of the I.P.C. The Court farther finds lack of mens rea on the part of the petitioner herein of dishonest and fraudulent intention
34. In the result the order impugned taking cognizance of the offence by the C J.M., Hazaribagh on 16.5.05 with the entire criminal prosecution in Complaint Case No. 73 of 2005 is quashed.
35. These petitions are allowed