Rajasthan High Court - Jodhpur
Jagdeep vs State And Anr on 19 November, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2948/2016
Jagdeep S/o Inder Kumar, by caste Sindhi Tahiliani, resident of
3-A-13, Chopasni Housing Board, Jodhpur.
----Petitioner
Versus
1. State of Rajasthan
2. Vinod Kumar S/o Shri Harish Kumar, by caste Sindhi,
resident of Plot No. 12 New Parihar Nagar Bhadwasiya Jodhpur
----Respondent
Connected With
S.B. Criminal Misc(Pet.) No. 3197/2016
Manoj Kulariya S/o Shri Kailash Chandra, by caste Suthar,
resident of Opp. Vidhyashala School Jalechi Jhalara Chandpole
Jodhpur
----Petitioner
Versus
1. The State of Rajasthan.
2. Vinod Kumar S/o Shri Harish Kumar, by caste Sindhi,
resident of Plot No. 12 New Parihar Nagar Bhadwasiya Jodhpur
----Respondents
For Petitioner(s) : Mr.PN Mohanani & Mr.Vishal Sharma.
For Respondent(s) : Mr.JP Bhardwaj, PP.
Mr.Kailash Soni.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 19/11/2018
1. The petitioners have preferred these two misc. petitions seeking quashing of the FIR No.163/2016 registered at P.S. Udai Mandir, Jodhpur (East) for the offences under Sections 420 and 406 IPC.
(2 of 6)
2. An F.I.R. was lodged by the respondent no.2/complainant with the allegation that the complainant is dealing in the business of publication of advertisement in the newspapers and display hoardings and the accused person contacted him for publication of advertisement in the newspapers and radio FM. The complainant submitted that pursuant to the aforesaid dealing, the complainant firm published advertisements in the newspapers and also on radio FM and received certain payments from time to time. The allegation of the complainant is that 2 cheques bearing nos.211233 and 211237 of Axis Bank were issued on 27.6.2015 and 1.7.2015 for a sum of Rs.2,95,403/- and Rs.3,00,000/- respectively but the same were not honoured. The genesis of allegation is that the cheques on presentation were not honoured and the payment was not made by the petitioners inspite of various opportunities to make such payment.
3. Learned counsel for the petitioners submit that it was a financial transaction between the parties and the FIR itself does not disclose constitution of criminal offence. Learned counsel for the petitioners further submitted that the financial transaction may have gone bad but the intention of the petitioners was not to cheat the complainant which fact is clear from the fact that after issuance of the aforementioned 2 cheques, the payments were made to the complainant by the petitioners. Payment of Rs.3 lakhs and Rs.7 lakhs was made by the petitioners on 6.8.2015 and 14.10.2015. Learned counsel for the petitioners have thus shown that if there was an intention not to pay while issuing the cheques, then the offence may be made out as has been alleged in the (3 of 6) complainant but since the payment of Rs.3 lakhs and Rs.7 lakhs have been made on 6.8.2015 and 14.10.2015 which is much beyond the issuance of the aforementioned cheques dated 27.6.2015 and 1.7.2015, there was a clear intention to pay and there is no question of committing the offence under Sections 420 and 406 IPC. Learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Hridaya Ranjan Prasad Verma and ors. vs. State of Bihar and anr. reported in (2000) 4 SCC 168, relevant paras 12 to 16 whereof read as follows :-
"12. 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.
13. Cheating is defined in Section 415 of the Code as, "415. "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 is likely to cause damage or harm to that person in body mind, reputation or property.
14. 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 (4 of 6) 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.
15. 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.
16. 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 averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on 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 (5 of 6) 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."
4. Learned P.P. submits that the police after investigation has come to the conclusion that the petitioners have made payment of Rs.17,17,403/- as against the outstanding of Rs.25,74,673/-. But learned P.P. was unable to point out any ingredient of criminal offence being made out.
5. Learned counsel for the respondent no.2/complainant has submitted that the cheques were not honoured and the amount due was not paid and the petitioners have committed the offences under Sections 406 and 420 of IPC. However, he could not dispute the fact that the petitioners have made payment of Rs.3 lakhs and Rs.7 lakhs after dishonour of the above referred cheques.
6. After hearing the learned counsel for the parties and after perusing the material available on record, this Court is of the opinion that the complainant has concealed the fact that he has received payment of Rs.3 lakhs and Rs.7 lakhs on 6.8.2015 and 14.10.2015 after dishonour of the above referred cheques and the same is fatal for the facts constituting an offence. This fact clearly reflects that the petitioners had all the intention to make the necessary payments and which were being made in a phased manner. The precedent law applies to the present case. It is seen by this Court that the parties may have remedies under civil and criminal law which may be separate or together but in the dispute involving transactions, the criminal law cannot be invoked unless there was cheating by dishonestly inducing a person to deliver (6 of 6) some property. The petitioners were doing the business in the area of advertisement and in lieu of this business, certain advertisements were given by the petitioners for publication to the respondent no.2 and payments were made. Even after issuance of the cheques which were dishonoured, the payments were made. The intention of the petitioners was clear. Having regard to the totality of the facts and circumstances of the case, this Court is unable to discern an element of cheating in the whole transaction. The respondent no.2 may have a right to claim his due amount, if any, by filing proper suit for recovery, however, the criminal law cannot be invoked for determining the outstanding dues between the parties.
7. In wake of the above determination, these misc. petitions are allowed and the FIR No.163/2016 registered at P.S. Udai Mandir, Jodhpur (East) for the offences under Sections 420 and 406 IPC and all consequential proceedings against the petitioners are hereby quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI),J S.Phophaliya/-
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