Dilip Kumar Jain vs State of U.P. and Another

Shri Kant Tripathi, J.—Rejoinder affidavit filed on behalf of the applicant is taken on record. Heard the learned counsel for the applicant and the respondent No. 2 and the learned A.G.A. for the respondent No. 1 and perused the record.

This is an application filed u/s 482, Cr.P.C. to quash the summoning order dated 24.9.2005 passed by the learned Special Chief Judicial Magistrate, Agra in complaint case. No. 527 of 2005, Ajay Kumar Jain v. Dilip Kumar Jain, under Sections 420, 406, 504 and 506, I.P.C. P.S. Kotwali, District Agra.

It appears that the respondent No. 2 filed a complaint in the court of Special Chief Judicial Magistrate, Agra, which has been registered as complaint case No. 527 of 2005, Ajay Kumar Jain v. Dilip Kumar Jain. The learned Special Chief Judicial Magistrate recorded the statement of the respondent No. 2 u/s 200, Cr.P.C. and also held an inquiry u/s 202, Cr.P.C. and during that inquiry recorded the statement of the witness Sandeep Rastogi. The summoning order dated 24.9.2005 has been passed on the basis of the statement of the complainant and the aforesaid witness.

According to the averments made in the complaint, the respondent No. 2 is involved in the business of manufacturing and sale of jewellries. The applicant who is the proprietor of the Samyak Trading Company, Chennai. entered into a business transaction with the respondent No. 2 on 21.5.2004 and purchased jewelleries on credit basis and that business continued up to 30.7.2004. Consequently, the respondent No. 2 made payment of Rs. 3,60,069 and on 19.11.2004 gave assurance to make payment of the balance amount of Rs. 2,91,669 but failed to carry out his assurance. It is also alleged that on 22.1.2005 when the respondent No. 2 demanded the balance amount, the petitioner hurled abuses and gave threatening to kill.

The learned counsel for the applicant submitted that the allegations made in the complaint, so far as the recovery of money is concerned, are of civil nature and as such the criminal proceeding has been instituted merely to harass the applicant and to make the recovery of money.

The learned counsel for the respondent No. 2, on the other hand, submitted following ingredients exist: that the intention of the applicant was dishonest at the time of the transaction, therefore, the criminal charge is also made out.

As per the averments made in the complaint, the applicant and the respondent No. 2 entered into commercial transactions and certain purchases were made by the petitioner and he made payment of Rs. 3,60,069 up to 19.11.2004, only Rs. 2,91,669 remained unpaid. In this way, a simple case of recovery of money is involved, Even according to the complaint allegations, it cannot be inferred that the intention of the applicant was dishonest at the beginning of the transaction. In case he failed to re-pay the balance amount or developed subsequently a dishonest intention, the dispute of civil nature does not convert into a case of criminal nature. A breach of contract or promise simplicitor does not constitute an offence u/s 420, I.P.C.

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 (supra), 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 where from 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.

.......... 28. 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.

In view of the aforesaid, the summoning order in respect of the offences under Sections 406 and 420, I.P.C. is nothing except an abuse of the process of the Court, therefore, it cannot be upheld.

So far as the offences under Sections 504 and 506, I.P.C. are concerned, they are, prima facie, made out from the allegations made in the complaint and also from the statements of the complainant and the witness, therefore, the summoning order in respect of the offences under Sections 504 and 506, I.P.C. seems to be perfectly correct and requires no interference.

The application is, therefore, partly allowed. The summoning order regarding the offences under Sections 406 and 420, I.P.C. are quashed but the remaining part of the summoning order is will remain intact.

The learned counsel for the applicant further submitted that the applicant may be provided some interim protection so that he may appear and seek bail under Sections 504 and 506, I.P.C.

In view of the facts and circumstances of the case and nature of the offences, the bail prayer of the applicant may be considered and disposed of on the same day by the courts below. With the aforesaid observations, the application u/s 482, Cr.P.C. is disposed of.