Gujarat High Court
Ketanbhai Popatlal Patel & 2 vs State Of Gujarat & on 22 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/96/2007 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 96 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KETANBHAI POPATLAL PATEL & 2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR.D K.PUJ, ADVOCATE for the Applicant(s) No. 1 - 3
NOTICE SERVED for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :22 /1/2015
CAV JUDGMENT
By this application under Section 482 of the Code of Criminal Procedure, 1973 (for short "the Code"), the applicants-original accused, seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of Criminal case No. 1383 of 2002, pending in the Court of the Page 1 of 5 R/CR.MA/96/2007 CAV JUDGMENT learned Metropolitan Magistrate, Ahmedabad, Court No. 16.
2. The facts giving rise to this application may be summarized as under:-
2.1 The respondent No.2 - original complainant, filed a private complaint in the Court of the learned Metropolitan, Magistrate, Ahmedabad, against the applicants herein, of the offence punishable under Sections 420 and 406 of the IPC.
The same was registered as Criminal Case No. 1383 of 2002. After recording the verification of the complainant on oath, the learned Metropllitan Magistrate, Court No. 16, Ahmedabad, thought fit to issue process under Section 204 of the Code, for the offence under Section 406 of the IPC.
2.2 It is the case of the complainant that the applicants herein, who are Partners of a Partnership firm running in the name of Mark Enterprise had borrowed in all a sum of Rs. 1,20,000/- from the complainant for the purpose of business. According to the complainant, he had issued three cheques (1) Cheque No. 373185 of Rs. 50,000/- dated 28.4.2002, (2) Cheque No. 376318 of Rs. 50,000/- dated 6.5.2000 and (3) Cheque No. 376359 dated 30.5.2000 in favour of the applicants. It is his case that after lending the money to the applicants, they refused to repay the borrowed amount when the same was demanded by the complainant. It is alleged in the complaint that the intention of the applicants was to cheat the complainant from the inception, and the non-payment of the borrowed sum, constitutes an offence of cheating punishable under Section 420 of the IPC and criminal breach of Page 2 of 5 R/CR.MA/96/2007 CAV JUDGMENT trust punishable under Section 406 of the IPC.
3. As noted above, the learned Metropolitan Magistrate has issued process only of the offence punishable under Section 406 of the IPC and not Section 420 of the IPC.
4. Mr. D.K. Puj, the learned advocate appearing on behalf of the applicants submitted that the complaint fails to disclose commission of any cognizable offence. None of the ingredients to constitute the offence under Section 406 of the IPC are spelt out. Even if the entire case of the complainant is accepted to be true, then also the dispute between the parties herein is essentially a civil dispute. Mr. Puj submitted that the non- payment of the borrowed amount by itself does not amount to commission of an offence of cheating or criminal breach of trust.
In such circumstances referred to above, it is prayed that there being merit in this application, the same be allowed.
5. It appears that although the respondent No.2 was served with the notice issued by this Court long time back, yet he has chosen not to appear and oppose this application either in person or through an advocate.
6. Having heard the learned counsel appearing for the applicants and having gone through the materials on record, the only question that falls for my consideration is whether the complaint deserves to be quashed.
Page 3 of 5 R/CR.MA/96/2007 CAV JUDGMENT7. Turning to the facts of the case, there is nothing either in the complaint and/or in the sworn statement of the complainant that any property was entrusted to any of the applicants at all or the applicants had any domain over any of the properties of the respondent No.2, which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 IPC, punishable under Section 406, IPC. Taking the complaint and the statement of the complainant as they are, it cannot be said even prima-facie that the applicants committed any offence punishable under Section 406, IPC, since the ingredients of that offence were not satisfied. Hence, the learned Magistrate committed a serious error in issuing process against the applicants for the offence under Section 406, IPC.
8. Assuming for the moment that the applicants have failed to repay the amount borrowed by them from the respondent No.2, even then the same would not even constitute an offence of cheating. Of course, the learned Magistrate has not issued process of the offence of cheating. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the process, to say that he committed an act of cheating. A mere failure to keep a promise subsequently cannot be presumed as an act leading to cheating.
9. There is no hint or even a remote suggestion that the complainant was induced to lend these amounts stated in the complaint as loan on account of any deception, any fraudulent Page 4 of 5 R/CR.MA/96/2007 CAV JUDGMENT or dishonest inducement practiced by the applicants. From the tenor of the complaint, it would appear that it was perfectly a normal loan transaction, in which the complainant had advanced loan to the applicants. It was clearly a case of default of debtor in repaying the amount of loan to the creditor. It is true that an offence under Section 420 of the IPC may be committed even during transactions in the nature of contracts, but this apparently is not one such case. It may be pertinent to mention here that the complainant has several remedies for recovering the loan amount intact. However, the default in repayment of the loan to the creditor cannot be equated with the cheating on the part of the defaulter.
10. Considering the totality of the circumstances, this appears to be a fit case in which this Court can exercise its inherent powers under Section 482 of the Code for quashing the proceedings.
11. In the result, this petition is allowed and the proceedings of criminal Case No.1383 of 2002, pending in the Court of the learned Metropolitan Magistrate, Ahmedabad, Court No. 16 stand quashed. Rule is made absolute.
(J.B.PARDIWALA, J.) Mohandas Page 5 of 5