Sanjay Gupta & Ors. vs Nissar Ahmad Bhat

Petitioners have invoked inherent jurisdiction of this court in terms of Section 561A Cr.P.C. for quashing the proceedings drawn by the court of

Judicial Magistrate, (2nd Additional Munsiff), Srinagar in case titled Nissar Ahmad Vs. Sanjay Gupta and others under section 420 RPC.

The main ground of attack taken in the petition is that in terms of averments contained in the complaint, the matter is of civil nature and filing of

complaint, drawing of cognizance and issuance of process is abuse of process of law. In order to thrash out the said controversy, it is necessary to

notice the averments contained in the complaint.

It is averred in the complaint that an agreement came to be executed between the parties and in terms of that agreement, respondent was

engaged as distributor of the products manufactured by M/s Lotus Herbals Limited and the Company was sending the goods ordered for to the

respondent against cash payment. It is further averred that as there was a good sale of all the products and also complainant achieved good and

desired results, the accused without any right or reason, did not send products for the amount to the tune of Rs. 1.30 lacs to the complainant

though accusedpetitioners had already received the amount therefor in advance. The complainant has accordingly prayed that accusedpetitioners

be punished for the commission of the offences punishable under section 420 RPC.

The complaint came to be transferred to the court of Judicial Magistrate, 1st. Class (2nd Additional Munsiff), Srinagar. Learned Magistrate

recorded preliminary statements of the complainant and one witness namely Muzaffar Ahmad Sheikh. Complainant Nissar Ahmad has deposed

that the complainant has been purchasing products from the accused for the last ten years. The complainant had deposited Rs. 1.20 lacs with the

petitionersaccused, but the accused petitioners failed to dispatch the goodsproducts, which has caused damage/loss to the

complainant/respondent.

Muzaffar Ahmad Sheikh has stated that the petitionersaccused have failed to send goods worth Rs. 1.20 lacs, which has adversely affected the

rights and interests of the complainant.

It is nowhere stated either in the complaint or in the preliminary statement of the complainant that the accusedpetitioners have committed offence

punishable under section 420 RPC. It is profitable to reproduce section 420 RPC hereunder:

Cheating and dishonestly inducing delivery of property.

Whoever cheats and thereby dishonestly induces the person deceives to deliver any property to any person or to make, alter or destroy the whole

or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be

punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

In order to attract section 420 RPC, the complainant has to disclose in the complaint that the accused has committed offence of cheating and

thereby has dishonestly induced the complainant to deliver any property. Neither such averment is contained in the complaint nor the witnesses

have deposited that the accused have dishonestly induced the complainant to make payment. Thus the main ingredient viz. ""inducing the

complainant"" is lacking.

Section 415 RPC defines cheating. In terms of section 415, it must be averred in the complaint that the accused have fraudulently or dishonestly

induced the complainant. No such averment is also contained in the complaint.

While going through the complaint and the statements recorded, it is a case based on agreement and at best can be said to be breach of

agreement and is a case of civil nature. In the given circumstances, filing of complaint, drawing of cognizance and issuing of process is abuse of

process of law. Accordingly this petition is allowed and the complaint and drawing cognizance and issuing of process is quashed. However, this

order shall not come in the way of the complainant for seeking appropriate remedy as warranted under law.