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2001 DIGILAW 308 (JK)

Satish Khosla v. Puran Chand

2001-11-29

B.L.BHAT

body2001
1. Through the medium of petition in hand under Section 561-A 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 Addl. Munsiff) Srinagar. It is inter alia maintained in the petition that petitioner accused No. 2 the Prop, of M/s Charag Deep Pictures Mandi road Jalandhar and the petitioners 2 & 3 are his son and grand son respectively. 2. That no offence is made out from the averments of the complaint and that the trial court has issued the process against the petitioners-accused without considering the fact as to whether there is a prima facie case made out against them. That the complainant has no locus standi to institute the complaint. That the process of Criminal Court cannot be misused for the settlement of a civil dispute. 3. It appears that the complaint for offences punishable under Section 120-B, 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 authorised to select and book the feature films to be screened in the said Cinema Hall. That the accused-petitioners herein are the partners of Film Distribution Company, namely, M/s Charag Deep Pictures, having its Head Office at Mandi Road, Jalandhar. The accused-petitioner No. 3 Rahul Khosla, besides being partner of the Company, is also authorised representative of this Company to do deals 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 petitioner-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, "Paap-Ki-Duniya" 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. "Paap-Ki-Duniya" 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/- to him as security deposit and promised to provide the print of said feature films i.e. "Paap-Ki-Duniya" 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 persons-petitioners had entered into criminal conspiracy to cheat and misappropriate the amount given to them by the complainant-respondent. That when the accused persons/petitioners failed to fulfils 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 of 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 120-B, 406 and 506 RPC is made out against the accused-petitioners, passed an order for issuance of bailable warrants in the amount of Rs. 5,000/- each against them. 4. The ingredients of offence under Section 420 RPC are not only that accused has cheated some one 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 :iii; accused had a dishonest intention from the very out set. 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 person 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. 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 accused-petitioner No. 3 did not falsely represent to the complainant as partner or authorised representative on M/s Charag Deep Pictures thereby deceived the complainant by negotiating with him for the supply of two Hindi Films namely, "Paap-Ki-Duniya" and "Shoola-Aur-Shabnam" 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. 25,000/- from the complainant as security deposit. From the averments of the complaint it is manifest that the accused-petitioner No. 3 has made a breach of contract by not supplying the feature films as promised by him. It is settled principle of law that mere breach of contract cannot 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/respondent entrusted the said money to the petitioner-accused 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 a 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 RPC (See JT 2001 SC 151). There is also nothing in the complaint to show that the petitioners-accused, in any way caused any criminal intimidation by extending threats of injury to his person, reputation or property. 5. Viewed thus, there are no sufficient grounds for proceeding against the accused/petitioners in terms of Section 204 Cr. There is also nothing in the complaint to show that the petitioners-accused, in any way caused any criminal intimidation by extending threats of injury to his person, reputation or property. 5. 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 offence under Sections 120-B, 406, 420 and 506 RPC because there is nothing in the complaint to show that the petitioners/accused have allegedly committed the said offences. 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. Therefore, to prevent the abuse of process of the 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 120-B, 406, 420 and 506 RPC, must be quashed. 6. 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 120-B, 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.