G.G. Bhatia and Others vs Sunil Kumar and Another

Servesh Kumar Gupta, J.—By way of this revision, the challenge is made to the order dated 12.4.2004, passed by the Special Judicial Magistrate Ist, Dehradun in Criminal Complaint No. 1705/2002, whereby the objections of the accused revisionists were rejected and the learned Magistrate directed to level the charge against them.

It is pertinent to mention at the outset that this Court has given hearing to learned Counsel for the revisionists, but none turned up on behalf of the complainant/private respondent no. 1, so hearing was accorded to the learned Brief Holder for the State.

The facts qua controversy are that on 17.2.1982, the revisionists, who are the traders settled at Bareilly, approached Sunil Kumar, Manager, Vigyan Chemical Industries, based at Dehradun, for supply of hydrated lime, and after entering into an agreement for supply of 7.5 metric ton of hydrated lime, the accused persons, in order to induce, gave a cheque of rupees four thousand, as advance, to the complainant Sunil Kumar on the same day i.e. on 17.2.1989 and promised to pay the remaining amount after the delivery of the ordered goods. Thereafter as per the agreement, 7.5 metric ton of hydrated lime, contained in 150 bags, was sent by the complaint to the accused revisionists on 20.2.1982 by truck no. URM-3647, and along with the said consignment, a bill no. 287 of Rs. 5962.50 was also sent. The lime was also received by the accused persons at Bareilly on 21.2.1982.

In the meanwhile, the aforesaid cheque was presented by Sunil Kumar for encashment through his banker, but the same was dishonourned on 27.2.1982 and returned unpaid to the complainant with the endorsement "referred to the drawer". So, Sunil Kumar sent a notice on 6.3.1982 to the accused persons, but in vain. So, he further sent repeated notices on 24.5.1983, 13.6.1983 & 14.7.1983. Those notices also could not yield any result. So, feeling constraint, he filed a complaint on 14.10.1983 against the accused revisionists for the offence of Section 420 IPC. Since the complainant regularly kept himself absent, therefore, this complaint was dismissed by the Judicial Magistrate Ist, Dehradun on 12.12.1989 with the following orders:

Called out.

Applicant is absent as usual.

Accused present.

No evidence produced.

Accused are discharged u/s 245 CrPC.

For want of evidence complaint is dismissed.

After dismissal of this complaint, Sunil Kumar filed another complaint with same set of facts, which was numbered as Case No. 1705/2002. The second complaint was instituted on 21.12.1989 and after recording the statements of the complainant as well as his witnesses, the learned Magistrate took cognizance on 10.4.1990 for the same offence of Section 420 IPC against the same accused persons.

All the accused persons put their appearance before the court. So, the statement of the complainant Sunil Kumar was recorded u/s 244 CrPC and, soon after, the accused moved an application for their discharge, which was heard on merits. The learned Magistrate rejected the said application of the accused persons vide the impugned order dated 12.4.2004.

It has been contended on behalf of the learned Counsel for the revisionists that after discharge of the accused persons and dismissal of the first complainant on 12.12.1989, the second complaint could not have been instituted against the same accused persons for the same offence and on the basis of same set of facts. This contention is not tenable and cannot be accepted for the reason that in the present case, the cognizance was taken by the learned Magistrate for the offence of Section 420 IPC, which is in the nature of warrant-trial, and being so, it was the duty of the Magistrate to summon the witnesses including the complainant for adducing evidence u/s 244 CrPC, exercising his powers and ensuring the attendance of the complainant and his witnesses even using coercive measures. It was wholly illegal to dismiss the complaint only for the reason of the absence of the complainant. The dismissal of first complaint, as has been done by the learned Magistrate on 12.12.1989, besides being illegal, has, at the most, the effect of discharge of the accused persons. They cannot be deemed to have been acquitted by effect of this order because no trial was ever conducted. This analogy is also in consonance with the explanation appended to Section 300 CrPC. So, the institution of the second complaint, in such an eventuality, is not barred by any provision of the Code of Criminal Procedure.

The other argument put forth by the learned Counsel is that contents of the complaint did not disclose the offence of Section 420 IPC. In support of his argument, learned Counsel has relied upon two precedents. In the first precedent of Allahabad High Court, delivered on 9.1.1978 in Criminal Miscellaneous No. 173 of 1977, M/s Prestolite of India Ltd. & Another v. The Munsif Magistrate, Hawali & Another, the learned Single Judge of the Allahabad High Court has opined that giving of a cheque is nothing but to promise to pay. If the promise is not fulfilled, the right of the aggrieving party is to sue and to seek civil remedy. It does not give rise to any criminal action. Subsequent refusal to pay the price of the goods, already delivered, also does not, per se, give rise to a criminal action.

In another precedent delivered by the Hon�ble Apex Court in case of S.W. Palanitkar and others Vs. State of Bihar and another, , it has been held that in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.

Having regard to both the precedents (supra) and particularly the view expressed by the learned Single Judge of the Allahabad High Court, in the humble opinion of this Court, the facts involved in instant controversy are different and the same have little more gravity than a bare promise to pay in consideration of the supply of some goods. The conduct of the accused revisionists, their intent and the inducement extended by them to the complainant at Dehradun appear to be something more than a sheer promise to pay in the usual transaction of the business.

So, in the peculiar facts and circumstances of this case and legal provisions, discussed above, this Court is not inclined to interfere with the impugned order. This revision is bereft of any merit and is liable to be dismissed.

The revision is, accordingly, dismissed. Interim order dated 16.6.2004, passed by this Court, is hereby vacated.

Inform the court concerned accordingly.