Dharmendra Singh and Others vs State of U.P. and Another

Shri Kant Tripathi, J.—This is an application u/s 482, Code of Criminal Procedure for quashing the proceedings of Criminal Case No. 48/94, Ashok Kumar v. Dharmendra Singh and Ors. under Sections 406, 420, 504 and 506, I.P.C., P.S. Ferozabad, South, pending in the Court of Judicial Magistrate, Ist Class, Ferozabad.

Heard learned Counsel for the applicants and the learned Counsel for the Respondent No. 2 and the learned A.G.A. for the Respondent No. 1 and perused the record.

The learned Counsel for the applicants submitted that according to the averments made in the complaint, no criminal charge is made out and the dispute is of civil nature. It is alleged that the quality of the supplied materials was not as per the agreement, therefore, the Respondent No. 2 was cheated the applicants.

The learned Counsel for the applicants further submitted that the story of assault on the Respondent No. 2 is absurd, in view of that there is no injury report. It was improbable that the applicants travelled from New Delhi to Ferozabad and assaulted the Respondent No. 2 in his own shop.

The learned Counsel for the Respondent No. 2, on the other hand, submitted that a prima facie case is made out from the facts stated in the complaint.

A perusal of the complaint reveals that the matter relates to a business transaction. If quality of the supplied materials was not up to the mark and was also violative of the agreement, appropriate course for the Respondent No. 2 was to file an appropriate legal proceeding for accounting as well as for compensation, if any. There is nothing in the entire complaint to show that the intention of the applicants was dishonest at the inception of the agreement, if any, subsequent breach was committed by the applicants, the same cannot constitute a criminal charge. A mere breach of promise does not constitute case of criminal nature.

Section 415, I.P.C. defines cheating, which reads:

Cheating.-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''.

An offence of cheating, therefore, is not made out unless the following ingredients exist:

(i) deception of a person either by making a false or misleading representation or by other action or omission;

(ii) fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

In the case of V.Y. Jose and Another Vs. State of Gujarat and Another, , the Apex Court has held that for the purpose of constituting an offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise, no offence u/s 420, I.P.C. can be said to have been made out. In paras 21 and 28, the Apex Court further observed:

There exists a distinction between pure contractual dispute of a civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the Court should not hesitate to exercise its jurisdiction u/s 482 of the Code of Criminal Procedure.

....

A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functioning of the trial courts.

A similar principle has been propounded in the case of S.V.L. Murthy Vs. State Rep. by CBI, Hyderabad, In that case, the Apex Court has held that one of the ingredients of cheating, as defined in Section 415, I.P.C., is existence of an intention to cheat at the time of making initial promise or existence thereof from the very beginning of formation of contract.

So far as the story of assault and hurling abuses to the Respondent No. 2 is concerned, it also seems to be absurd and improbable. The assault as well as hurling abuses are alleged to have been made in the shop of the Respondent No. 2 which situates at Firozabad. The applicants belong to New Delhi and it is alleged that they travelled from New Delhi and assaulted the Respondent No. 2 in his own shop, but no apparent injury was sustained by the Respondent No. 2 and no medical examination was done. In view of this, the factual aspects of the matter, the story seems to be concocted.

It appears that the complaint has been filed merely to pressurize the applicants to make the payment and also to make supply in pursuance of the agreement, and hence, the proceedings of complaint case is nothing but an abuse of process of the Court.

Accordingly, the application is allowed.