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2002 DIGILAW 1274 (AP)

DEVARPALLI VEDA NAYAKAM v. State Of A. P.

2002-10-31

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) THE petitioner who is the accused, seeks to quash the proceedings in cc No. 624 of 2001 on the file of the III metropolitan Magistrate, Vijayawada, Krishna district, by invoking inherent powers. ( 2 ) A brief resume of the background of the facts, is necessary: The petitioner herein is the correspondent of SCUP, School, kuddusnagar, Vijayawada. The 2nd respondent studied MA, BEd. , She approached the petitioner in the year 1994 and requested to provide a job in the school. It is alleged that he demanded an amount of rs. 85,000/- to give the teacher post. It is also alleged that as she has given Rs. 30,000/- in the month of September, 1994 and rs. 10,000/- in the next month, she has received an interview card in the month of october, 1995 and after interviewing her on 19-10-1995, she has been appointed as B. Ed. , (Social) Assistant on a monthly salary of rs. 2,525/ -. The petitioner took an amount of Rs. 20,000/- in the month of March, 1996. The main grievance of the 2nd respondent, is that the petitioner promised her to give aided post and the amounts have been collected and her salary has not been paid during the period of two and half years she worked and later, she has resigned. It is also alleged that she was cheated. Thereupon, she gave a report, which lead to filing of charge-sheet by the Sub-Inspector of Police, Law and Order, S. N. Puram Police station, Vijayawada. The learned Magistrate took the cognizance of the offence under section 420 IPC. The petitioner who is the accused, seeks quashing of these proceedings by preferring this petition. It is contended by the learned Counsel for the petitioner that the averments in the complaint, do not constitute an offence under section 420 IPC and while placing reliance on the decision of the Supreme Court reported in S. N, Palanitakar v. State of Bihar, air 2001 SC 2960 , it is also contended by the learned Counsel for the petitioner that mere failure to keep up the promise subsequently, does not constitute an offence. It is also contended by the learned Counsel for the petitioner that non-payment of salary as alleged, is false one and he is having receipts obtained from the 2nd respondent herein. It is also contended by the learned Counsel for the petitioner that non-payment of salary as alleged, is false one and he is having receipts obtained from the 2nd respondent herein. ( 3 ) THE learned Public Prosecutor contends that it is a case where misrepresentation has been made, which led to filing a charge-sheet and hence, it constitutes an offence publishable under section 420 IPC. ( 4 ) THE learned Counsel appearing for the 2nd respondent contends that the signatures of the respondent were taken on blank papers and the documents might have been fabricated. It is also contended that it is not a fit case wherein inherent power can be exercised to quash the proceedings. ( 5 ) THE only point that has to be considered by this Court at this stage, is whether the petitioner has got intention to deceive from the beginning and whether the averments constitute an offence. It is clearly stated at paragraph 21 of the supreme Court decision in AIR 2001 SC 2960 , (supra) as follows:"it is clear that the allegations made in the complaint and the sworn statements that the appellant No. 1 company entered into an agreement with the respondent No. 2 on certain terms and conditions. It is alleged that the appellant No. 7 went to Patna and contacted respondent No. 2 and induced him to enter into an agreement assuring him of huge profit. At the time of arriving at such an agreement, none of the other appellant either met the respondent No. 2 or induced him to enter into agreement with a view to cheat him. The agreement was further renewed for a period of one year. It is not the case there was no supply of goods at all as it has come on record that there was supply of 400 ton of fertilizer may be it was far less than the required quantity. The allegations made against the appellants other than the appellant No. 7 are very vague and bald. From the material that was placed before the Magistrate, even prima facie, it cannot be said that there was conspiracy of connivance between the other appellants and the appellant No. 7. The allegations made against the appellants other than the appellant No. 7 are very vague and bald. From the material that was placed before the Magistrate, even prima facie, it cannot be said that there was conspiracy of connivance between the other appellants and the appellant No. 7. If the appellants have committed breach of agreement, it is open to respondent No. 2 to seek redressal in a competent Court or forum to recover damages, if permissible in law in case he had sustained any loss. In order to constitute an offence of cheating the intention to deceive should in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. " ( 6 ) A close scrutiny of the charge- sheet and the 161 Cr. PC statements, clearly disclose that the 2nd respondent parted with the amounts before appointment orders were issued. The correctness or otherwise of the same, can only be decided during the trial as it requires placing necessary material before the Court. The Court has to see whether there is any prima facie material to file the charge-sheet by the police and whether the Magistrate took cognizance of the offence, on sufficient material. ( 7 ) I am of the considered view, that the averments in the charge-sheet and 161 cr. PC statements are sufficient material to take cognizance of the offence. I disagree with the contention of the learned Counsel for the petitioner that he was not having intention to deceive from the beginning. In any view of the matter, that is a fact to be decided during the trial and cannot be decided by drawing inference on the strength of the material placed. ( 8 ) IF the contents of averments in the charge-sheet are taken as a whole along with the material collected by the police, it certainly constitutes an offence punishable under Section 420 IPC. It is not a case where the Court can exercise inherent power to quash the proceedings, inasmuch as there is sufficient material to take cognizance of the offence under Section 420 IPC and the learned Magistrate has rightly taken cognizance. It is not a case where the Court can exercise inherent power to quash the proceedings, inasmuch as there is sufficient material to take cognizance of the offence under Section 420 IPC and the learned Magistrate has rightly taken cognizance. There is need to interfere with the proceedings, as there is no illegality in the order. ( 9 ) IN the result, the criminal petition is dismissed.