ANIL AGRAWAL And ANOTHER vs STATE OF CHHATTISGARH

Ramesh Sinha, J

Heard Mr. Shantam Awasthi, learned counsel, appearing for the applicants as well as Mr. Ruhul Memon, learned Panel Lawyer, appearing of the non-applicant/State.

The present criminal revision iled by the applicants with the following prayer:-

“ It is, therefore, respectfully prayed that the Hon’ble Court may kindly pleased to set aside the impugned judgment and order dated 08.07.2011 passed by the Additional Session Judge in Criminal Appeal No.20/2011, Durg by which the applicants have been convicted and sentenced to sufer rigorous imprisonment. Any other order that may be deemed it and just may also kindly be made.”

Facts of the case are that the applicants are Directors of the ABS Steels and ABS Metal which are the registered under the provisions of Companies Act, 1956, for manufacturing of hard black Wire, Binding Wire, barbed Wire and trading of Steel etc. The applicants were provided cheque facility by the Punjab National Bank, branch Civic Centre Bhilai for transaction of their business.

As per the prosecution story, one Vinit Agrawal, S/o Deendayal Agrawal, Proprietor of Shri Balaji Traders, made a written complaint to the Police Station Jamul against the applicants stating therein that he is indulged in trading of various types of steel. On or about April 2009 the applicant No. 1, namely, Anil Agrawal came to the oice of the complainant and asked for credit purchase of Steel for one month from his factory. Since, the complainant knew the applicant no. 1 very well, therefore, on his oral assurance he supplied steel in the month of April and May, 2009, worth Rs. 5 Crores 25 Lacs. For which the applicant no. 1 (Anil Agrawal) and Applicant no. 2 (Vijay Agrawal) had given diferent dated cheques of total Rs. 4 Crores 65 Lacs and all those cheques dishonoured. Later on, he came to know that all the family members of Anil Agrawal absconded. The applicant no. 1 (Anil Agrawal) and his family members with intention to damage/loss to the complainant and to gain proit for themselves purchased steel through trading and the cheques were issued for payment knowing it that there was no money in their account. Thus, he was cheated with conspiracy.

After the completion of the investigation, a charge sheet under section 420 and 120-B of IPC read with section 138 of the Negotiable Instrument Act against the applicants was iled in the court of Judicial Magistrate First Class, Durg, on 03.10.2009. The Learned Judicial Magistrate First Class framed charges under Sections 420 and 120-B of the IPC read with section 138 of the Negotiable Instrument Act, against the applicants.

The trial commenced against the applicants where during the course of the trial the prosecution has examined the witnesses. On the deposition given by the aforesaid prosecution witnesses including the complainant which crystalline that there was no evidence against the applicants to implicate them as accused in the aforesaid crime number and criminal proceedings. However, the learned Trial Court vide order dated 31/01/2011 convicted the applicants for the ofence under Section 420 of IPC and sentencing them to sufer rigorous imprisonment for two years each and further sentenced them to pay a ine of Rs.3,000/- each and in default to sufer rigorous imprisonment for three months. Further the Learned Trial Court sentenced the applicants under section 120-B of the IPC to sufer rigorous imprisonment for one year each and further sentencing them to pay a ine of Rs.1,000/- each and in default to sufer rigorous imprisonment for three months. The learned Trial Court also ordered that both the sentences would run separately.

Thereafter, the applicants iled Criminal Appeal against the conviction and sentence passed by the Learned Trial Court under Section 374 (3) of the Code of Criminal Procedure 1973, which was inally heard and decided by the Additional Session Judge vide order dated 08.07.2011, thereby conirming/maintaining the order made by the Learned Trial Court with a slight modiication that the sentences would run concurrently. Hence, this criminal revision.

Learned counsel for the applicants submits that for the reason that the learned Court below failed to see that the distinction between mere breach of contract and the ofence of cheating is a ine one. It depends upon the intention of the accused at the time of 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 ofence is said to have been committed. Therefore, it is the intention which is the gist of the ofence 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. He further submits that from this 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. He also submits that the learned Court below failed to see that only because the applicants had issued cheques which were dishonoured, the same by itself would not mean that they had cheated the complainant.

Learned counsel for the applicants further submits that the complainant after being satisied started supplying materials. So during the time of the transaction there was no inducement. If there was no inducement

at the initial stage, subsequent inducement will not constitute the ofence under Section 420 of the Indian Penal Code.

Learned counsel for the applicants submits that the applicants have already undergone the jail sentence as awarded by the trial Court and partly allowed by the learned Appellate Court.

From the perusal of the above said facts, it transpires that the learned Trial Court vide order dated 31/01/2011 convicted the applicants for the ofence under Section 420 of IPC and sentenced them to sufer rigorous imprisonment for two years each and further sentenced them to pay a ine of Rs.3,000/- each and in default to sufer rigorous imprisonment for three months. Further the Learned Trial Court sentenced the applicants under section 120-B of the IPC to sufer rigorous imprisonment for one year each and further sentencing them to pay a ine of Rs.1,000/- each and in default to sufer rigorous imprisonment for three months. The learned Trial Court also ordered that both the sentences would run separately. Thereafter, the applicants iled Criminal Appeal against the conviction and sentence passed by the Learned Trial Court under Section 374 (3) of the Code of Criminal Procedure 1973, which was partly allowed by the Additional Sessions Judge, thereby conirming/maintaining the judgment passed by the Learned Trial Court with a slight modiication that the sentences would run concurrently. Even otherwise, the applicants have already served out the jail sentence as imposed by the Court below.

Considering the submissions advanced by the learned counsel for the parties and perusing the impugned judgment, the judgment of the trial Court and the concurrent inding recorded by the learned trial Court as well as the appellate Court, I am of the view that both the Courts have not committed any illegality and inirmity or jurisdictional error in the impugned order warranting interference by this Court. Even otherwise, the applicants have already served the sentence as imposed by the trial Court and modiied by the appellate Court.

Accordingly, the criminal revision being devoid of merit is liable to be and is hereby dismissed.