Sri Pradip Kumar Sarawagi & others vs Dipti Gogoi

With the help of this application, made under Section 482 Cr.PC., the two petitioners have put to challenge the order, dated 27.02.2004, passed, in Complaint Case No.514C/2004, by the learned SubDivisional Judicial Magistrate, No.II, Kamrup, Guwahati, taking cognizance of offences under Sections 420 and 406, read with Section 34 IPC and directing issuance of summons to the accusedpetitioners.

None has appeared for the parties concerned, though the matter has been called twice.

The case of the complainant, as can be discerned from the complaint, in question, is, in brief, thus: The accusedpetitioners had, at Fancy Bazar, Guwahati, their business establishment dealing with Bell Metal scrap with accused No. 1 as Managing Director of the said business establishment, which was run under the name of style of M/s B. R. Metals Limited, and the accusedpetitioner No. 2 is one of the Directors of M/s B. R. Metals Limited. The accusedpetitioners used to receive money from other businessmen and individuals, on interest, at the rate of 12% per annum. On 12.09.98, accused No. 1 received a sum of rupees two lakhs from the complainant, on loan, by way of cheque No.61704, dated 12.09.98, of the State Bank of India, Bharalumukh Branch. Yet another sum of Rs.4,40,000/ was received, as loan, by the accusedpetitioner No. 1 from the complainant by way of cheque No.617048, dated 24.09.98, of the State Bank of India, Bharalumukh Branch. The said total sum of Rs.6,40,000/ had been received by the accusedpetitioners by making promises to pay interest @ 12% per annum and, in this regard, accused No. 1 had issued acknowledgement as regards receipt of the cheques, which had been encashed from the Bank aforementioned. The accusedpetitioners, however, withdrew their business from Guwahati and shifted to Gurgaon, Haryana, leaving a skeleton business establishment at their original place of business at Fancy Bazar, Guwahati. Though several attempts were made by the complainant to contact the accusedpetitioners, there was no success. The accusedpetitioners have, thus, ceased to have any contact with the complainant.

While considering the present revision, it needs to be noted that the accusedpetitioners received, as alleged by the complainant, the said sum of Rs.6,40,000/ and their shifting of the business and stopping their communication with the complainant is prima facie indication of their having no intention to repay the load amount meaning thereby that the accusedpetitioners had, dishonestly and by adopting deceitful means, induced the complainant to give them money and committed thereby the offence of cheating.

In the circumstances indicated above, it is impermissible in law to quash the complaint in the absence of any explanation forthcoming from the accusedpetitioners as to why they have not made payment and/or why they have shifted their business as alleged by the complainant.

It needs to be noted, in a case of present nature, that under the law, the conduct, subsequent to a transaction, is also relevant for the purpose of deciding as to what intention a person had at the commencement of the transaction. The subsequent conduct of the accusedpetitioners prima facie show that, without having the intention to repay, they had induced, dishonestly and by deceitful means, the complainant to give them Rs. 6,40,000/ and committed thereby the offence of cheating. One cannot but hold, in a situation of present nature, that a prima facie case ofcommission of offence of cheating has been made out by the complainant against the accusedpetitioners.

While, therefore, in the facts and circumstances of the present case, taking of cognizance, under Section 406 IPC, may not be appropriate, the complaint, in question, cannot be quashed nor can the impugned order, taking cognizance and directing issuance of summons to the petitioners, be set aside and quashed, particularly, when the complaint, in question, prima facie discloses commission of an offence under Section 420 IPC.

In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed. The accusedpetitioners are hereby directed to appear, within two weeks from today, in the Court of the learned SubDivisional Judicial Magistrate No.2, Kamrup, Guwahati, in connection with the case aforementioned.

With the above observations and directions, this revision shall stand disposed of.