Seth Anand Kumarson vs Kasturi Lal

S.C. Mittal, J.—On 5th August, 1972, Kasturi Lal partner of Messrs. Tilak Ram Satish Kumar & Co. Bhatinda, filed a complaint under sections 420 and 406, Indian Penal Code, against Anand Kumar of the firm Lord Krishna Textile Mills, Saharanpur, residing in Green Park, New Delhi, in the Court of Chief Judicial Magistrate, Bhatinda On the said date, the Magistrate, after recording the statement of the complainant, came to the conclusion that a prima facie case against the accused above-named was made out and he directed that summons be issued to the accused. The accused has moved this Court u/s 561-A of the Code of Criminal Procedure for quashing the said proceedings.

The sum and substance of the complaint is that the firm of the accused had purchased cotton worth lacs of rupees from the complainant. Six cheques amounting to Rs. 50,000/- were issued in favour of the complainant. When the complainant presented the cheques they were disponoured by the Bank for want of funds in the account of the accused. Thereupon, the complainant sent his son to the accused who represented that the cheques had not been honoured by the Bank owing to some mistake. As promised by the accused, he personally went from Delhi to Bhatinda and met the complainant on 23rd July, 1972. The accused assured the complainant that the Bank had returned the cheques by mistake.

With respect to the commission of offence u/s 406, Indian Penal Code, the averments made in the complaint are that on 23rd July, 1972, when the accused asked the complainant for any work to be done in Delhi, the complainant gave Rs. 1,000/- to the accused for delivery to his (complainant''s son) in Delhi, but later the complainant was informed by bis son that the accused had not given the said sum of Rs. 1,000/- to him. Thus, according to the complainant the accused committed criminal breach of trust.

The law relating to the quashing of proceedings at interlocutory stage as laid down by their Lordships of the Supreme Court in R.P. Kapur Vs. The State of Punjab, is that where the allegations in the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such a case without appreciating the evidence and by merely looking at the complaint, the proceedings should be quashed.

Learned counsel for the accused-petitioner contended that having regard to the allegations made in the complaint in their entirety no case u/s 420, Indian Penal Code, was made out. Sect on 415, Indian Penal Code, defines cheating as under:

Whoever, by deceiving any person fraudulently or dishonestly induced 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".

Then, section 420, Indian Penal Code, provides for delivery of property to any person by dishonest inducement and cheating. It need hardly be said that one of the essential ingredients of cheating is deception practised by an accused-person. In the case in hand, the complainant''s main plank is that six post-dated cheques, which were to be cashed between 12th February, 1972 and 31st March, 1972, issued by the accused were dishonoured by his Bankers. His learned counsel strongly placed reliance on the following observations of Newsam J. in M. M. S. T. Chidambram Chettiar v. Shanmugham Pillai AIR 1938 Mad. 129:

in the world of business, things are often done which are betrayals of confidence and deceptions which arouse moral indignation, but are nevertheless civil wrongs which can be righted by Civil Courts and are not crimes which can be punished by a Criminal Court. Not every immoral act is criminal and it is an abuse of the process of the court to attempt to create a new crime in order to compel men to conform to a high standard of probity in business dealings or to force them to execute their promises. And therefore the High Court to prevent specious and spiteful criminal prosecutions for actions which, though strictly dishonourable, yet do not amount to crimes, has jurisdiction to interfere.

A post dated cheque in payment of goods already received is a mere promise to pay on a future date and a broken promise is not a criminal offence, though it may amount in certain business relations to discreditable behaviour

Respectfully agreeing with the view of Newsam J., I find that from the bare circumstance that six post-dated cheques of the accused were dishonoured by his bankers, the offence of cheating cannot be made out. Learned counsel for the accused pointed out that as alleged in the complaint, goods worth lacs of rupees were purchased by the accused but dishonesty is being attributed to him only in regard to the said six cheques totalling Rs. 50,000/-. A very noteworthy feature of this cafe is that in the complaint it has nowhere been alleged that the accused practised deception on the complainant and dishonestly induced him to deliver the goods. That being so, I have no hesitation in finding that since the allegations made in the complaint do not constitute the commission of offence u/s 420, Indian Penal Code, therefore, proceedings in respect of this offence have to be quashed. I allow the petition accordingly.

Coming now to the allegations relating to the criminal breach of trust against the accused, set out above, his learned counsel has not been able to show how they do not satisfy the ingredients of section 406, Indian Penal Code That being so, the petition with respect to the alleged commission of offence u/s 406, Indian Penal Code, cannot succeed. The petition is accordingly dismissed in this behalf.