Sanwal Ram Kejriwal v. State — 1964 DIGILAW 448 (ALL)

ORDER H.C.P. Tripathi, J. - Applicant Sanwal Ram Kejriwal is the Director of Messrs Kejriwal Commercial Corporation (Private) Limited Kanpur-a Company dealing in the manufacture and sale of fertilizers. Opposite party Sri Ram Niwas is the Honorary Secretary of U.P. Co-operative Cane Unions' Federation Limited, Lucknow-an apex organization of the Cane Cooperative Unions in the State. 2. On 27.4.1962 the applicant instituted a complaint against the opposite party before a Magistrate at Kanpur on the allegations that his Company used to supply Sanai seeds and fertilizers to the U.P. Co-operative Cane Unions' Federation Ltd. Lucknow, that under the terms of the contract the Federation used to pay 90 per cent price of the goods supplied against the railway receipts and in the case of Sanai seeds the remaining 10 per cent after the satisfactory receipt of the consignment, and in the case of fertilizers, the balance was paid on the receipt of nitrogen analysis result of the same, that inspite of this contract the opposite party who happens to be the Secretary of the Federation under the influence of "certain wire-pullers of rival concerns" stopped payment of the part of the remaining 10 per cent of Sanai seed amount though the consignments had already been received by the Federation. Whereupon the applicant intimated to him that he would stop the supply of fertilizers in case his dues under 10 per cent head relating to the supply of 'Sanai seeds were not paid to him. The opposite party thereupon promised to make the payment of the balance amount and informed the applicant that he had directed his office to prepare a cheque for Rs. 10,000/- and to send the same to him in payment of his Sanai seed dues. Relying on this promise and assurance the applicant supplied goods of considerable amount to the Federation after the 7th of March, 1962 and he was given a cheque for Rs. 10,000/- by the opposite party on the 15th of March, 1962. Subsequently, however, on a false pretext that the fertilizers supplied by the applicant's Company were adulterated with an inferior stuff, the opposite party stopped payment of the amount of the cheque and that as the applicant would not have supplied the goods to the Federation if he had not been given assurance by the opposite party to be paid Rs. Subsequently, however, on a false pretext that the fertilizers supplied by the applicant's Company were adulterated with an inferior stuff, the opposite party stopped payment of the amount of the cheque and that as the applicant would not have supplied the goods to the Federation if he had not been given assurance by the opposite party to be paid Rs. 10,000/- by cheque, the action taken by him in stopping its payment amounted to an offence u/s 415 of the Indian Penal Code. Applicant made a further allegation in his complaint that the opposite party was maliciously spreading false allegations to different persons and competitors in the field of his business, that the goods supplied by the applicant were adulterated and has thus damaged the business reputation of the applicant thereby committing an offence u/s 500 IPC. 3. The Magistrate who was seized with the case was of opinion that as the opposite party was a gazetted Government servant, being an Assistant Cane Commissioner, Lucknow, and that as it was in addition to his own duties as such that he was also appointed by the Cane Commissioner as Honorary Secretary of the Cane Unions' Federation Limited, Lucknow, the complaint against him without obtaining sanction of the State Government, was barred by Section 197 Criminal Procedure Code. He, therefore, rejected the complaint and discharged the opposite party. 4. In revision the learned Civil and Sessions Judge was of the view that although the complaint was not barred by Section 197 of the Code, the finding of the Magistrate discharging the opposite party was correct because the allegations made in the complaint on the very lace of it did not constitute offences under Sections 420 and 500 IPC. He, therefore, upheld the order of discharge and dismissed the revision. The applicant has now come up in revision to this Court. 5. I have heard the learned Counsel for the parties. 6. In order to constitute an offence of cheating, it must be established that the accused deceived the complainant dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. 5. I have heard the learned Counsel for the parties. 6. In order to constitute an offence of cheating, it must be established that the accused deceived the complainant dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. It is thus obvious that dishonest intention on the part of the accused at the time of making the representation to the complainant on the basis of which complainant parts with his property is an essential ingredient of the offence. In other words, means rea on the part of the accused must be established before he can be convicted of an offence of cheating. 7. When the allegations made in the complaint are considered in the light of the observations made above, they fail to disclose an offence of cheating on the part of the opposite party. The opposite party was not to gain anything personally by stopping the payment of the cheque. In his capacity of an Honorary Secretary of the Federation, however, it was his duty to see that the terms of the contract between the parties were duly observed and that the financial interests of the Federation were not jeopardized in any manner. It is mentioned in the complaint that only 90% of the price of the goods supplied was to be paid by the Federation on the basis of the railway receipts -at once and the balance of 10% was to be paid only after certain formalities had been completed, namely, that the consignment of Sanai seeds had been received in full and in proper condition and the fertilizers supplied were of standard quality, In other words, it was one of the terms of the contract between the parties that the Federation would be entitled to withhold payment of 10% of the price under certain circumstances. 8. The opposite party addressed a letter dated 19th March, 1962 to the applicant informing him that he had withheld the payment of crossed cheque for Rs. 8. The opposite party addressed a letter dated 19th March, 1962 to the applicant informing him that he had withheld the payment of crossed cheque for Rs. 10,000/- issued in his favour against 10% balance of Sanai seeds supplied last year because inquiries had revealed that the oil cakes supplied by the applicant to the Cane Unions during Calendar year had been adulterated with inferior stuff which if true would cause appalling loss to the Cane Unions and therefore the 10% balance amount payable to the applicant was being withheld till the enquiries were finalised. This letter unmistakably points out that the payment of the aforesaid cheque was withheld by the opposite party not in furtherance of any criminal intention which he is alleged to have entertained at the time when he had directed the aforesaid cheque to be sent to the applicant, but because he had received complaints from his constituent unions that the fertilizers supplied by the applicant's Company were not of the standard quality which, if true, would have amounted in causing great loss to the Federation and that as inquiries were still continuing in that regard it was necessary by way of abundant precaution. I am, therefore, satisfied that even if the allegations made in the complaint that it was on a representation made by the opposite party that the Federation was going to issue a cheque for Rs. 10,000/- to the applicant that the applicant supplied goods later on is correct, no offence is made out against the opposite party because he had no dishonest intention in stopping the payment of the cheque. Same is the case about the non-payment of the balance amount alleged to be due to the applicant on account of the supply of the Sanai seeds. It is not clear from the allegations made in the complaint as to whether the conditions on the fulfillment of which alone the balance amount was to be paid have been fulfilled. It is difficult to believe that a limited concern, having such wide ramifications as the Federation would enter into a contract without having any intention to discharge its obligations under the same. It is difficult to believe that a limited concern, having such wide ramifications as the Federation would enter into a contract without having any intention to discharge its obligations under the same. It is still more difficult to believe that the opposite party who is an Honorary Secretary of the Federation and was not to gain anything personally would have entertained a dishonest intention at the time of entering into the contract and would have, therefore, made false representations to the applicant to persuade him to part with Sanai seeds and fertilizers in favour of the Federation. 9. The allegations made about the opposite party trying to defame the applicant in the business circle is also not of much substance. Nothing has been alleged in the complaint as to how, in what manner and to whom the opposite party had spoken about the adulterated nature of the applicant's supplies. It the opposite party was putting forward is claim for withholding payment on the basis of allegations received by him from the consumers, it cannot be said that he was thereby defaming the applicant, as the question whether the applicant's goods were adulterated or not was in dispute between them and the parties had a right to support their respective contentions. 10. Learned Counsel for the opposite party has stated that a Suit No. 61 of 1962 instituted by the applicant's Company in May 1962 against the Federation claiming a sum of Rs. 27,181/- which includes the amount of cheque in dispute also is pending in the court of the Civil Judge at Kanpur and a First Appeal From Order No. 269 of 1963 arising out of the suit is pending between the parties in this Court. Learned Counsel contends that the criminal proceedings have been launched by the applicant not because there was any deception played on him but with a view to exercise pressure on the federation to accept his claim for money. 11. Be that as it may, in view of the circumstances enumerated above, I agree with the bindings of the learned Sessions Judge that the dispute between the parties is purely of a civil nature and it will be an abuse of the process of the Court to allow the opposite party to be tried on the basis of the allegations made in the complaint as the trial can never end in conviction. 12. 12. This revision had no force and is dismissed.