Satish Khosla and Ors. vs Puran Chand

Through the medium of petition in hand under Section 561A Cr. P.C, the petitioners have sought quashment of the proceedings and process

issued against them in complaint titled as ""Puran Chand Vs. Satish Khosla and Ors."" pending decision before the learned Judicial Magistrate (1st

AddlMunsiff) Srinagar. It is interalia maintained in the petition that petitioner accused No. 1 is the Prop, of M/s Charagdeep Pictures, Mandi Road,

Jalandhar and the petitioners 2 & 3 are his son and grandson respectively. That no of fence is made out from the averments of the complaint and

that the trial court has issued the process against the petitioners accused without considering that fact as to whether there is a prima facie case

made out against them. That the complain ant has no locusstandi to institute the complaint. That the process of Criminal Court cannot be misused

for the settlement of a civil dispute.

It appears that the complaint for of fences punishable under Sections 120B, 406, 420, and 506 R.P.C. came to be transferred to learned

Judicial Magistrate (1st Addl. Munsiff) Srinagar for disposal under law. The averments of the complaint in brief are that the complainant is an agent

of Broadway Cinema, Srinagar, who is empowered and authorized to select and book the feature films to be screened in the said Cinema Hall.

That the accusedpetitioners herein are the partners of Film Distribution Company, namely, M/s Charag Deep Pictures, having its Head office at

Mandi road Jallandhar. The accused petitioner No. 3, Rahul Khosla, besides being partner of the Company is also authorized representative of this

company to do deal with the Cinema owners/their agents and also to receive the payments on behalf of the Company and other partners. That on

05.01.2001 the petitioners accused No. 3 on his own behalf and on behalf of the remaining petitioners met the complainant at Broadway Cinema,

Srinagar, negotiated with the complainant in connection with the supply of two Hindi Feature Films namely, ""PaapkiDuniya"" and ""Shoola Aur

Shabnam"" and after settling all the terms and conditions asked the complainant to pay an amount of Rs. 25.000/ to him as security deposit and

promised to provide the print of said feature films i.e. ""PaapKiDuniya"" in the first week of March, 2001 and ""shoola Aur Shabnam"" in the second

week of March, 2001. That despite receiving the payment of Rs. 25.000/ from the complainant, the accused petitioners did not despatch the film

prints of the said feature films. That actually the accused personspetitioners had entered into criminal conspiracy to cheat and misappropriate the

amount given to them by the complainantrespondent. That when the accused persons/petitioners failed to fulfill their promise, the complainant

demanded the money amounting to Rs. 25.000/ back but they categorically refused to return the same. On presentation of the complaint before the

learned Magistrate, he recorded the statements of the complainant and one Siya Ram and by virtue of his order dated 04.03.2001 after recording

the satisfaction that a prima facie offences, punishable under Sections 120B, 406 and 506 RPC is made out against the accusedpetitioners, passed

an order for issuance of bailable warrants in the amount of Rs. 5000/ each against them.

The ingredients of offence under Section 420 R.P.C. are not only that accused has cheated someone but also that by doing so he has

dishonestly induced the person who was cheated to deliver the property. This shows to constitute an offence under this Section, it must be shown

that the complainant parted with his property, acting on a representation which was false to the knowledge of the accused and that the accused had

a dishonest intention from the very outset. The fraudulent and dishonest intention is the gist of the offence that is to say the accused had a fraudulent

and dishonest intention of causing wrongful gain to one persons and wrongful loss to another person and had intention to defraud the complainant

at the time of making the promise. From the mere failure of the accused to keep up the promise, cannot be presumed as an act leading to cheating.

Besides, this is not sufficient to show that false representation had been made but it is necessary to show that the representation was false to the

knowledge of the accused and was made to deceive the complainant. In the background of this law, let us examine the complaint in question

instituted by the complainant/respondent against the accused/petitioners. From the bare perusal of the complaint it reveals that the

accusedpetitioner No. 3 did not falsely represent to the complainant as partner or authorised representative of M/s Charag Deep Pictures thereby

deceived the complainant by negotiating with him for the supply of two Hindi Feature Films namely, ""PaapKiDuniya"" and ""ShoolaAurShabnam

and thereby induced him to pay Rs.25,000/ as security deposit and later on failed to keep his promise. There is nothing in the complaint to show

that said accused/petitioner acted with any dishonest or fraudulent intention in receiving Rs.25,0007 from the complainant as security deposit.

From the averments of the complaint it is manifest that the accusedpetitioner No. 3 has made a breach of contract by notsupplying the feature films

as promised by him. It is settled principle of law that mere breach of contract cannot give rise to criminal prosecution under Section 420 RPC,

unless fraudulent or dishonest intention is shown right at the beginning of the entering into the contract. There is also nothing in the complaint to

show that the complainant 7 respondent entrusted the said money to the petitioneraccused No. 3, who dishonestly misappropriated or converted

the said money to his own use. The simple retention of the money by the petitioner accused No. 3 may be civil wrong in respect to which the

respondent/complainant may seek his redress for damages in a Civil Court. Again mere retention of money entrusted to a person without

misappropriation or its conversion to his own use is not a criminal breach of trust as defined under Section 405 of the R.P.C. (See JT 2001 SC

151). There is also nothing in the complaint to show that the petitioners/caused, in any way accused any criminal intimidation extending threats or

injury to his person, reputation or property.

Viewed thus, there are no sufficient grounds for proceeding against the accused/petitioners in terms of Section 204 Cr.P.C. in the complaint in

question for offense under Sections 120B, 406, 420 and 506 RPC because there is nothing in com plaint to show that the petitioners/accused have

allegedly committed the said of fences. Thus the order of issuance of process, in terms of Section 204 Cr. P.C. by the learned Magistrate, against

the accused/petitioners, dated 04.03.2001 has resulted in miscarriage of justice. There fore, to prevent the abuse of process of court, it is a fit case

in which the order of issuance of process against the petitioners/accused, in the complaint in question, for the offences punishable under sections

120B, 406, 420 and 506 RPC, must be quashed.

In the result, the petition is allowed and the proceedings in the complaint titled as ""Puran Chand Vs. Satish Khosla and ors"" for offences U/S

120B, 406, 420 and 506 RPC, pending decision before the Court of learned Judicial Magistrate (1st Addl. Munsiff) Srinagar, are quashed. Trial

Court be informed of this order. Record be sent back.