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3. The contention of the learned counsel for the second respondent is that as per the terms of the agreement between the second respondent and the accused, the accused have to return the post-dated cheques and the bank guarantees furnished by the second respondent for the due performance of the contract in a phased manner, and that 2nd respondent who performed its part of the contract by supplying the machinery as per the agreement was paid the entire amount due and payable by the accused to it and so the accused who have to return the post-dated cheques and the bank guarantees furnished by it had, with a mala fide intention and to cheat the second respondent, not only presented the post-dated cheques for payment but had also invoked the bank guarantees and so there is prima-facie case of cheating against the accused. It is his contention that second respondent filing a suit for an injunction restraining the petitioners and others from invoking the bank guarantees, and invoking the arbitration clause, are not and cannot be a ground for quashing the complaint, because an act done by a person can given raise to both civil and criminal liability, and the fact that civil remedy is pursued is not and cannot be a bar for invoking the criminal jurisdiction and relied on Lalmuni Devi (Smt.) v. State of Bihar, 2001 (1) Andh LT (Cri) 219 : (2001 AIR SCW 2504) and Medchel Chemicals and Pharma (P.) Ltd. v. Biological E. Ltd., in support of his contentions.

In Lalmuni Devi case (2001 AIR SCW 2504) (supra) and Medchel Chemicals case (2000 Cri LJ 1487) (supra) the Apex Court held that when the complaint discloses the ingredients for the offence alleged, the fact that civil remedy is available to the complainant is not a ground for quashing the criminal proceedings.

Principles laid down in the above decisions would be kept in view while deciding this case.

5. That 2nd respondent supplied the machinery ordered by the second accused for and on behalf of the first petitioner company, and that payment for that machinery was made by the first petitioner is not denied or disputed. It is the specific case of 2nd respondent that the bank guarantees and post-dated cheques were issued to the accused as security for the due performance of the contract, and that after it performed its part of the contract as per the terms of the agreement to the satisfaction of the accused, the accused without returning the bank guarantees and post-dated cheques as per the terms of the agreement, had mischievously presented the post-dated cheques for payment and invoked the bank guarantees and thus have committed an offence under Section 420. IPC. It is no doubt true as per the decisions relied on by the learned counsel for petitioners, for bringing home the guilt of the accused under Section 420, IPC, complainant should establish that the accused had an intention to cheat even at the time of entering into transaction. In my considered opinion the question whether the accused had, in fact, an intention to cheat even at the time of inception can be decided only on the basis of the evidence adduced, and for taking cognizance of a complaint under Section 420, IPC it is enough if the allegations in the complaint prima facie disclose that the complainant was cheated by the accused, because the Apex Court in Rajesh Bajaj v. State of NCT of Delhi, held that for the Court to take cognizance of an offence under Section 420, IPC it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging, and that it also is not necessary that he (the complainant) should state in so many words that the intention of the accused was dishonest or fraudulent and if factual foundation for the offence has been laid in the complaint, the Court should not hasten to quash the complaint. In my considered opinion if the intention to cheat is apparent on the face of the accused, or if he proclaims that he has an intention to cheat even at the time of entering into the transaction, there can be no scope for the complainant to enter into the transaction because no ordinary prudent man would enter into the transaction with another person fully knowing that the person with whom he is entering into the transaction has an intention to cheat him. So the question whether there was intention on the part of the accused to cheat the complainant, even at the time of inception, will have to be decided by the trial Court, depending on the evidence adduced and the facts and circumstances of the case. For that purpose the conduct of the accused would be relevant.

6. It is well known that while deciding a petition under Section 482, CrPC to quash a complaint, the allegations in the complaint have to be assumed as true. The allegations in the complaint in this case show that as per the agreement between the parties the bank guarantees and post-dated cheques have to be returned by the accused to the 2nd respondent and that it (2nd respondent) had supplied the machinery worth Rs. 360 lakhs to the accused as per the terms of the agreement and received payment therefor as per the terms of the agreement. If a purchaser, who takes bank guarantee from the vendor for the due performance of the contract, makes full payment for the goods as per the terms of the agreement to the vendor and invokes the bank guarantee also, prima facie intention to cheat on the part of the purchaser can be drawn. In the facts and circumstances of the case, it can prima facie be said that the accused were having an intention to cheat the second respondent. As stated earlier question whether there was intention to cheat even at the time of entering into contract or not can, in the facts and circumstances of the case, be decided only on the basis of the evidence adduced during the course of trial. Therefore, I see no grounds to quash the complaint on the ground that the 2nd respondent failed to specifically allege in the complaint that there was intention to cheat on the part of petitioners even at the time of entering into the contract.

13. Before parting with the case, I wish to place on record a few thoughts of mine. It is well known that Legislature enacts laws to arrest unsocial or undesirable activities, which cause harm to the society at large, and prescribes deterrent punishments to prevent such activities taking place. Judicial notice can be taken of the fact that there is a sea-change in the human values and that human values etc. of 21st century are different from those prevailing in the 19th century. History tells us the people in this country, generally, were honest and law abiding during 1860 i.e. 19th century when IPC came into force on 6-10-1860, when with one rupee a person could purchase more than one bag of rice and some gold also. Now a bag of rice costs more than Rs. 1,000/-. Salaries of many Government servants and officers at that time were in two figures. Now even a class four employee earns four figure salary. Obviously keeping in view the said fact recent enactment like Narcotic Drugs and Psychotropic Substances Act, 1985 and Information Technology Act, 2000 prescribe fine in lakhs of rupees for the offences committed under those enactments. But the fine prescribed in IPC way back in 1860, which at the time could be a deterrent, remained unchanged even till now i.e. more than 140 years after IPC was enacted. In the present day situation the meager fine prescribed in several sections of I.P.C. can, by no stretch of imagination, be said to be a deterrent to prevent such offences. Since greed to become rich overnight by any means , has become the order of the day, and taking notice of the fact that several individuals and bogus institutions, by promising rich returns, are luring innocent people into investing their hard earned money with them and are vanishing overnight, Legislature, in an attempt to prevent such operations, made some laws, obviously because such acts may not fall under 'cheating' as defined in Section 415, I.P.C. 'Cheating' as understood by a common man is different from 'cheating' as defined by Section 415, IPC, because for 'cheating' to be an offence under IPC, intention to cheat even at the time of entering into the transaction has to be established. In the present day situation when honesty became a very rare commodity, and since nobody would make apparent his intention to cheat even at the time of inception, and since persons resort to cheating only after creating confidence about his being honest in the mind of the man he intends to cheat, in my considered opinion it may be in the fitness of things, and to suit the present day need, to cast the burden to establish that he had no intention to cheat on the accused, by making suitable amendment to Section 415, IPC. It is for the concerned authorities to take a decision.