Rajasthan High Court - Jodhpur
Nihar Vyas vs State Of Rajasthan on 8 January, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 83/2019
1. Nihar Vyas S/o Sh. Nihar Rajendra Vyas, Aged About 38
Years, B/c Hindu, R/o 407, Titanium City Opp. Seema
Hall, Satellite, Ahmedabad.
2. Mitesh Vora S/o Sh. Jayendrabhai Vora, Aged About 44
Years, B/c Hindu, R/o Street No. 6, Rayjibaug, Junagar.
3. Smt. Pallavi Vora W/o Mitesh Vora, Aged About 40 Years,
B/c Hindu, R/o Street No. 6 Rayjibaug, Junagarh.
4. Sh. Sadhu Jagdish Ramdas, Aged About 40 Years, B/c
Hindu, R/o 407, Titanium City Opp. Seema Hall, Satellite,
Ahmedabad.
5. Tejas Bhai Metha S/o Sh. Chandrakant Bhai Metha, Aged
About 45 Years, B/c Hindu, R/o 407 Titanium City Opp.
Seema Hall, Satellite Ahmedabad.
----Petitioners
Versus
1. State Of Rajasthan, Through P.p.
2. Sunil Bamb S/o Sh. Trilok Chand, 34 Main Sector,
Shanstri Nagar, Bhilwara, Kotwali Bhilwara. Rajasthan
----Respondents
For Petitioner(s) : Mr. Kuldeep Mathur and Mr. Vinod
Choudhary
For Respondent(s) : Mr. VS Rajpurohit, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 08/01/2019
1. Defects pointed out by the office is overruled.
2. Petitioners have preferred this misc. petition under Section 482 of Cr.P.C. for quashing of FIR No.0610/2018 lodged at Police Station Kotwali, Bhilwara, District Bhilwara for the offences under Sections 406, 420 and 120-B of IPC.
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3. The brief facts of this case, as noticed by this Court, are that as per the said FIR on 08.06.2018 one agreement was entered between the petitioner No.1 and 2 and the complainant for purchase of mix scrape lot of approximately 2,10,000 pieces which in totality valued Rs.6,30,00,000/-. The complainant has included the name of petitioner No.3 for the reasons that the bills / invoices were issued in the name of the company of petitioner No.3 and petitioner No.4 and 5 have been included being the guarantor of the agreement.
4. The allegation is that the accused persons have taken charge of godown where goods were lying as per the agreement after paying Rs.30,00,000/- in advance to the complainant. The remaining amount was not paid and the cheques which were given to the complainant have not been put to encashment by the complainant and he has simply alleged that such cheques are being prevented from being presented by the accused persons.
5. Learned counsel for the petitioner has referred to the judgment passed by Hon'ble Apex Court in Hridaya Rangan Pd.
Verma & Ors. Vs. State of Bihar & Anr. decided on 31.03.2000. The relevant portion of said judgment reads as under :-
"(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
In the decision this Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised 'very sparingly and with circumspection and that too in the rarest of rare cases'.
(Downloaded on 04/06/2021 at 08:36:22 PM)(3 of 7) [CRLMP-83/2019] The principles laid down in this decision have been followed in several decisions of this Court like [1995] 5 SCC 194 Rupan Deal Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and another, [1999] 3 SCC 259; Rajesh Bajaj v. State NCT of Delhi and others, [1992] 2 SCC 651; State of Kerala and others v. O.C. Kuttan and others, [1996] 9 SCC 1 and P.S. Rajya v. State of Bihar, [1996] 2 SCC 194 State of Orissa v. Bansidhar Singh.
The question is whether the case of the appellants comes under any of the categories enumerated in State of Haryana and others v. Bhajan Lal and others (supra) ? Is it a case where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in entirety do not make out a case against the accused? For determination of the question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the complaint.
On a reading of the complaint portions of which have been extracted earlier it is clear that the main offence alleged to have been committed by the appellants is 'cheating' punishable under section 420 IPC. Cheating is defined in Section 415 of the Code as, "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 section requires - (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 (Downloaded on 04/06/2021 at 08:36:22 PM) (4 of 7) [CRLMP-83/2019] is likely to cause damage or harm to that person in body mind, reputation or property.
On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. in the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under section 420 IPC and its allied offences under sections 418 and 423 has not been made out. So far as the offences under sections 469, 504 and 120B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana & Ors. v. Bhajan Lal and Ors. (Supra) and as such warrants interference by the Court. Reading the avernments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on (Downloaded on 04/06/2021 at 08:36:22 PM) (5 of 7) [CRLMP-83/2019] the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in complaint. All that the respondent No. 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No. 2 part with property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent no.2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same. "
6. Learned counsel for the petitioner has submitted that on the bare reading of the FIR, the complainant himself has admitted the agreement and on the payment of Rs.30,000/-, the intention of the accused persons at the inception is clear that they wanted to enter into the transaction, as agreed.
7. Learned counsel for the petitioner has also submitted that the legal notice dated 07.10.2018 was served upon the accused persons which clearly reflected that the intention of the respondent was to raise the civil dispute. The reply of the said notice was also given on 20.10.2018.
8. Learned Public Prosecutor states that if the complete record regarding the agreement and the civil dispute is brought to the knowledge of the investigating officer, the investigating officer shall investigate upon them strictly in accordance with law.
9. Learned counsel for the petitioner, however, submits that the petitioners want to submit a representation alongwith all (Downloaded on 04/06/2021 at 08:36:22 PM) (6 of 7) [CRLMP-83/2019] the relevant documents before the concerned investigating authority to redress the issue.
10. Learned Public Prosecutor assures this Court that if the petitioners submit a representation along with all the necessary documents before the concerned investigating authority within a period of ten days from today, then the same shall be considered and decided strictly in accordance with law, before completing the investigation.
11. In light of the aforesaid assurance given by learned Public Prosecutor, the present misc. petition is disposed of with a direction to the concerned investigating authority that in case the petitioners submit a representation along with all the necessary documents before it within a period of ten days from today, then the same shall be considered and decided before completing the investigation, strictly in accordance with law and as per the assurance given by the learned Public Prosecutor.
12. In the peculiar facts of the case, it would be appropriate to grant protection from arrest to the petitioners as it will be a waste of energy and resources of the Police Department to run after the accused to complete the related investigation and without protection it would also cause un-necessary hardship to the accused, who deserves a basic opportunity of explaining his case before the Investigating Authority without fear of arrest. The Investigating Officer, however, shall have the liberty of custodial interrogation after giving 15 days' notice before arrest if required.
In the interest of justice and the facts and circumstances noted by this Court, the limited protection is justified. Therefore, if during the investigation, the concerned investigating authority needs to (Downloaded on 04/06/2021 at 08:36:22 PM) (7 of 7) [CRLMP-83/2019] arrest the petitioners, then the petitioners shall be given 15 days' notice before making such arrest. The petitioners shall be required to join the investigation. The petitioners shall be at liberty to approach this Court again, in case need arises.
(DR. PUSHPENDRA SINGH BHATI),J 109-Sudheer/-
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