Rakesh Agarwal And Anr vs Ram Avatar Bansal And Anr

Heard Mr. B. Kaushik, learned counsel for the petitioners as well as Mr. A.J. Hazarika, learned counsel appearing for and on behalf of the respondent No.1.

By filing this revision u/s.482 CrPC, the petitioner has prayed for setting aside the order of taking cognizance and issuing process to the petitioners on 21.12.2015, by the Court of learned Judicial Magistrate 1st Class, Kamrup (M) at Guwahati, in C.R. Case No.3337/2014, u/s.420/406/417 IPC.

Briefly stated the case of the petitioners is that on 08.12.2014, the respondent No.1 filed a complaint before the learned CJM, Kamrup (M) at Guwahati, inter alia alleging that in the month of November/December, 2011, the present petitioners represented themselves before the respondent No.1, as reputed dealers of coal and requested them to place order for delivery of coal on various occasions. On repeated approach by the petitioners, the respondent No.1 fell prey and was lured by the inducement made by the petitioners and thus placed an order for supply of coal by paying a sum of Rs.90,000/-. The respondent No.1 deposited the money in the Bank Account of the petitioner No.1. But the petitioners, as assured by them, failed to deliver the ordered coal and thereby kept on giving assurance that the coal will be delivered soon. However, on being failed to deliver the coal, the respondent No.1 made demand for refund of the money paid by him on 12.01.2012, for supply of coal, along with interest @18%. The petitioners thereafter on the pretext of several false assurances, requested the respondent No.1 to grant them some time for refund of the money and on being failed to honour the assurance made by the petitioners, the respondent No.1, in August, 2014, visited Margherita personally to get refund of the money but instead of making the payment, the petitioners behaved rudely with the respondent No.1 and driven out him from their office.

The respondent No.1 being humiliated, filed a Complaint u/s.420/406/417/384//392/357 IPC before the learned CJM, Kamrup (M) at Guwahati, which was registered as C.R. Case No.3337/2014. The learned trial Court after examining the complainant/respondent No.1 and his witnesses, u/s.202 CrPC, has taken cognizance of the offence under Sections 420/406/417 IPC, vide order dated 21.12.2015.

Challenging the aforesaid order of taking cognizance as well as the entire proceeding, the present petition has been preferred u/s. 482 CrPC, for quashing the aforesaid order and the entire proceeding on the grounds that the allegation does not attract the ingredients of Sections 420/406/417 IPC and as such continuation of the Criminal Proceeding is not sustainable. Further in contends that the grievances raised by the complainant/respondent No.1 is purely civil in nature and taking cognizance of offence amounts to abuse of the process of law.

I have heard the learned counsel for the petitioners as well as the learned counsel for the respondent No.1.

In support of the petition, the learned counsel has contended that there was good business relating between the parties for which the petitioners assured to supply coal to the complainant/respondent No.1 but due to certain reasons beyond their control, they could not supply the same nor could return the money but there was no any deception on their part so as to cheat the complainant/respondent No.1. It has been submitted that from the complaint as well as the initial deposition, even if taken at face value, it does not disclose any offence, save and except civil dispute between the parties.

Reliance has been placed upon the decisions of the Hon'ble Apex Court in Rashmi Jain vs. State of Uttar Pradesh and another, reported in (2014) 13 SCC 553 and the decision of this Court in Pran Jyoti Bhuyan vs. State of Assam another, reported in 2014 (1) GLT 887, to submit that there are lack of evidence in the complaint petition and the evidence recorded that the petitioners have dishonest intention at the time of taking the money to cheat the complainant. So there cannot be any ingredients of the offence u/s. 420 IPC, so as to took cognizance of the offence.

On the basis of the aforesaid decisions, it has been submitted that mere breach of contract between the parties would not amount to offence of cheating, as 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. Mere failure to keep up the promise subsequently, such a culpable intention at the beginning when the promise was made, cannot be presumed.

The learned counsel for the complainant/respondent No.1 has however highlighted the entire facts and it was on the approach and assurance on the part of the petitioners, he paid the money to supply of coal but from the different false pretext taken by the petitioners over a period of years, it can be held that they have no intention to return the money. It is submitted that only because of the fact that certain aspects have civil profile, the criminal liability cannot be denuded. Relying on a decision of the Apex Court in Bhushan Kumar and another vs. State (NCT of Delhi) and another, reported in (2012) 5 SCC 424, it has been submitted that the matter of taking cognizance by the Magistrate cannot be interfered by way of quashing proceeding unless it is shown that there is lack of proper evidence or prima facie case to make out a case for taking cognizance.

The observation made in Bhusan Kumar (Supra) is quoted here-in-belong for ready reference:

"The expression "cognizance" in Sections 190 and 204 CrPC is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 CrPC, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 CrPC.

A "summons" is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

Section 204 CrPC does not mandate the Magistrate to explicitly state the reasons for issuance of summons. Section 204 CrPC mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in Section 204 CrPC that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. Therefore the order passed by the Magistrate cannot be faulted with only on the ground that the summoning order was not a reasoned order".

The learned counsel for the respondent further relied on the decision reported in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander and another), wherein the Apex Court has formulated certain principles to be considered for exercise of jurisdiction u/s. 397 or u/s. 482 CrPC, which is summarized as below:

"1) Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

3) Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

4) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

5) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

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9) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction.

10) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and do not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

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Thus in the aforesaid cases, it has been specifically held that mere existence of civil dispute would not by itself alter the status of allegations, constitution criminal offence. For quashment of criminal proceeding, allegations have to be so pre-dominantly have civil nature that would eliminate criminal intent and liability. Further it is held that if the record disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceeding cannot be quashed merely because of a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction.

Bearing in mind the guidelines that have been set forth above, it is discernible that only because the matter has a civil profile, a criminal offence if otherwise made out in a given circumstance, criminal proceeding is not liable to be quashed and set aside.

On due consideration of the complaint as well as the witnesses that was produced by the complainant/respondent No.1, it will reveals that the petitioners herein had approached the complainant/respondent No.1 for supply order of coal and persuaded by their submission, the complainant paid Rs.90,000/- on 09.01.2012 but thereafter the petitioners herein neither provided the coal as agreed upon nor returned the money despite repeated approach by the complainant and they resorted to false assurance to supply the articles but they never execute the same. In the process, the complainant insisted the petitioners to return the money since August, 2014 but instead of refunding the money, they assaulted him and ousted him from their office when he went to make demand of the same. The averments made by the complainant in para 21 and 22 of the complaint is reproduced below:

"21) That the complainant in July 2014 came back from his home town to Guwahati and in the first week of August 2014 visited Margherita and met the accused and demanded the refund of his money. The accused again started giving excuses. The complainant refused to listen to the excuses of the accused and asked the accused to refund him his money and told the accused that he shall wait in the office the whole day but would not return without his money. The accused thereafter started behaving very rudely and when the complainant told them that he shall file a case for having cheated him and having played fraud with him and made him deposit the money in the account of the accused with a dishonest intention, the accused then pushed him out of the office and assaulted him. The complainant felt very humiliated and was also physically hurt. The complainant also could not inform this fact to his friends and employers at Margherita as he feared loss of his reputation. The complainant thus came back humiliated and suffered the physical assault and came back to Guwahati. On reaching Guwahati, the complainant decided to take legal advice on the matter and then decided to file this complaint.

22) That from the facts and circumstances of the case, it is crystal clear that both the accused from the very beginning had a dishonest intention and with such dishonest intention the accused induced the complainant to part with his hard earned money and thus deposited a sum of Rs.90,000/- on 09/01/2012. The accused misappropriated the money which the complainant had deposited for purchase of coal to be delivered to the complainant by the accused. But the accused instead of utilizing the money for the purchase of coal, misappropriated the money for their own illegal and wrongful gain. Thus the accused have committed criminal offence punishable under the Indian Penal Code, 1860."

Obviously the respondent No.1 has raised the matter of cheating as well as misappropriation of the money on the part of the accused/petitioners because of the conduct of the petitioners. In the given circumstances, a prima facie case appears to have been made out by the complainant/respondent No.1 for taking cognizance of the offence and appropriate charge may be framed by the learned trial Court at the time of framing of charge.

As has been held in Bhusan Kumar (Supra), the learned trial Court is not require to record a detail order while taking cognizance but has only to apply its judicial mind. The provision u/s. 482 CrPC can be invoked in rarest of rare cases where there is miscarriage of justice or abuse of the process of law.

The inherent power u/s. 482 CrPC being an extra ordinary and residuary power, is applicable in regard to the matters which are specifically provided for under other provisions of the CrPC. In the given backdrop, quashing of proceeding is not justified.

Having regard to the above, the Court is not inclined to allow the prayer. Petition is dismissed accordingly.