Punjab-Haryana High Court
Ratan Kumar Modi And Anr. vs State Of Punjab And Anr. on 28 November, 1990
Equivalent citations: (1991)99PLR265
JUDGMENT S.S. Grewal, J.
1. The petition under Section 482 of the Code of Criminal Procedure relates to quashment of complaint, copy whereof is Annexure P I, and the order passed by the Judicial Magistrate 1st Class, Dhuri, dated 4th December, 1989, copy whereof is Annexure P-2 for summoning the present petitioners as accused, on the basis of the said complaint under Section 420/34 of the Indian Penal Code.
2. In brief, the facts relevant for disposal of ibis case, as emerge, on the basis of the complaint filed by Paw an Kumar Garg, are that he and his brother Prem Chand entered into an oral agreement with the accused (Present petitioners) for purchase of Modi Cotton Ginning and Pressing Factory situated at Nabha in March, 1989. Om Parkash, Rajnish Bansal and Kewal Krishan were also present at the time when the alleged oral agreement of sale was entered into, and in consequence thereof, the complainant and his brother Prem Chand paid Rs. 65,000/- to each of the accused vide Bank Drafts No. 290560/ 296/89 and 290561/297/89 dated 21-3-1989 drawn on Punjab National Bank and payable to the accused at Delhi. The payment of these two drafts was received by the accused It was further pleaded that the complainant and his brother obtained two more draft Nos. 290576/ 321/89 and 290 577/322/89 dated 28 3-1989 valued at Rs. one lakh each from Punjab National Bank, Dhuri. and one draft was payable to each of accused. On 22nd April, 1989, Naresh Kumar Modi accused came to the complainant at Dhuri and returned the two drafts of Rs. one lakh each in its original condition, whereas the ether two drafts of Rs. 65,000/' each were obtained by the accused from Punjab National Bank, Green Park Extension, Delhi payable to the complainant at Dhuri In this way, the accused wanted to return the earnest money which they had obtained from the complainant and his brother. At the time, Naresh Kumar Modi accused made rep- resentation to the complainant and his brother in the presence of Chander Bhan and Yash Paal of Dburi that some differences had cropped up between the co-owners which were likely to be resolved soon and in that case the drafts, which he was returning, would again be accepted as earnest money. The complainant and his brother had faith in the accused that they would honour their commitments. However, after about ten days, the complainant and his brother came to know that the sale deed has been executed by the accused regarding the Modi Mill at Nabha qua their share in favour of Muni Lal and Lal Chand of Nabha The complainant and his brother again approached the accused, but the accused was not available for few days and later on, they asked the complainant and his brother to wait for another fifteen days. Ultimately, the accused refused to oblige the complainant and his brother in the first week of June. Thereafter the complainant and his brother presented the drafts in the Punjab National Bank at Dhuri. but the bank authorities told the complainant and his brother that the payment of two drafts valued at Rs. 65,000/- each, had already been referred by the Delhi Branch and consequently the Delhi Branch advised the back authorities at Dhuri not to make payment of those drafts. The accused represented to the Delhi Branch that the drafts have been misplaced or lost, and they have received the payment b\ getting the duplicate drafts prepared. In this way, the complainant and his brother have been fraudulently cheated of Rs. 1, 30,000/-
3. The learned counsel for the parties were heard.
4. On behalf of the accused petitioners it was rightly submitted on the basis of the authority of the apex Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., A. I. R. 1983 S. C. 67 that proceedings against an accused in the initial stage can be quased only if on the face of the complaint, or, the papers accompanying the same, no offence is constituted. In. other words, the test is that taking the allegations and the complaint, as, they are, without adding or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise of us powers under Section 482 of the Code of Criminal Procedure To the similar effect, are the observations of their Lordships of the Supreme Court in State of Bihar v. Murad Ali Khan and Ors., A.I.R. 1989 S. C. 1, that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence, the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the Court or not,
5. In the instant case from the careful perusal of the allegations made in the complaint, it is quite obvious that the particular time when the alleged oral agreement of sale was entered into between the parties in March, 1989, the accused had not, in any manner, fraudulently or dishonestly, induced the complainant party to deliver the two bank drafts of Rs. 63,000/- each, to the accused party. Rather, according to the allegations in the complaint itself, inconsequence of the agreement of sale, the complainant and his brother Prem Chand paid Rs. 65.000/- each to the accused vide two bank drafts, dated 21st March, 1989, and the payment of these two drafts was received by the accused. Two more drafts valued at Rs. 1,00,000/-each, are alleged to have been obtained by the accused from the complainant party on 28th March, 1989, and both these drafts were alleged to have been returned to the complainant party on 22rd April, 1989, by Naresh Kumar Modi The two other drafts worth Rs. 65,000/- each, were also returned by the accused to the complainant party and at that stage representation was allegedly made by the said accused to the complainant party that differences between the co-owners were likely to be resolved soon, and, in that case the drafts which he was returning, would, again be accepted as earnest money. It was further alleged in the complaint that in the first week of June, 1989, the accused refused to comply with the terms of the alleged agreement. Thereafter, the complainant party presented their two drafts valued at Rs. 65,000/- each, for payment. However, the payment in respect thereof was stopped at the instance of the accused, who themselves received the payment by getting duplicate drafts prepared, clandestinely.
6. Even if the allegations, referred to above, are assumed to be correct, it cannot be said that such allegations prima facie make out either that the accused had cheated the complainant or his brother, or had dishonest or fraudulent intention at or before the time when the complainant party parted with two bank drafts of Rs. 65,000/- each, in respect whereof, the complainant party is alleged to lave been cheated. Nor do the allegations in the complaint indicate that the accused party had induced the complainant to pay them the amount of Rs. l,30,000/- with such dishonest or, fraudulent intention. Thus, the allegations made in the complaint prima facie do not make out any case for commission of criminal offence punishable under Section 420 of the Indian Penal Code. From the allegations in the Impugned complaint, it is also quite patent that the said allegations may, at best, constitute breach of alleged contract of sale, or give rise to civil liability. From the facts and circumstances of the present case, to allow the criminal proceedings to continue against the accused party on the basis of the impugned complaint and the order passed by the trial Court for summoning the petitioners as accused, would amount to abuse of the process of the Court.
7. I find support on this point from the authority of the apex Court in Hari Prasad Chamaria v. Bishun Kumar Surekha and Ors., A. I. R. 1974 S. C. 301, wherein under some what similar circumstances it was held that "there is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35,000/-. There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000/- by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating."
8. For the foregoing reasons, the impugned complaint (copy Annexure P-1) the alleged summoning order (copy Annexure P-2) passed by the trial Magistrate and subsequent proceedings taken thereunder, are directed to be quashed This petition is accordingly allowed.