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2002 DIGILAW 817 (PNJ)

Manmohan Singh v. Milkhi Ram

2002-08-19

KATHURIA

body2002
Judgment Kathuria, J. 1. Manmohan Singh and Surinder Pal Singh, petitioners-accused seek quashing of complaint dated 1.4.1997 (Annexure-P.1) filed under Sections 406 and 420 of the Indian Penal Code, summoning order dated 4.5.1998 (Annexure-P.2) passed by the Judicial Magistrate 1st Class, Ludhiana and the order dated 2.12.1999 (Annexure-p.4) rejecting the application of the petitioners for their discharge in the complaint pending in the Court of Judicial Magistrate 1st Class, Ludhiana. 2. The facts which led to the institution of complaint need to be noticed briefly. Milkhi Ram, respondent-complainant is proprietor of M/s B.K. Rope Store, Talab Bazar, Ludhiana and has been dealing in sale and supply of all kinds of Hessian cloth, Ban Rope, Bardana Niwar, Seba, Sutri and Tiber etc. The petitioners accused are the directors of M/s Village Paper Private Limited, Mehatpur, District Una (H.P). On 13.12.1995, the petitioners accused in the presence of Bhavneshwar Kumar son of the complainant, Dharam Pal Sharma, Collection Clerk and Ramesh Kumar, Accountant asked the complainant to supply the Hessian Cloth as well as Seba on credit which was needed in connection with the business of their firm and at that time they had assured the complainant that they had a flourishing business and would definitely make the payments for the goods supplied to their firm. Acting on this representation, the complainant supplied Hessian Cloth worth Rs. 84,500/- vide bill No. 005234 dated 13.12.1995 which was sent in a tempo No. PB-10P-9633 vide G.R. No. 1554. At the time of taking delivery of the goods the accused had signed on the back of the bills. They had assured that the payment would be made within a week thereafter. Subsequently, complainant also supplied to the firm of the accused Seba vide bill No. 5287 dated 22.12.1995 for Rs. 2410/- through the transport company. The petitioners- accused had sent cheque No. RGQ 213843 dated 13.1.1996 for Rs. 44,500/-, another cheque No. RGQ 213842 dated 7.1.1996 for Rs. 40,000/- drawn on Punjab National Bank, Model Town, Ludhiana. When these cheques were presented for encashment to the bank as per direction of the accused in February 1996, these were dishonoured for the reason that petitioner-accused, Surinder Pal Singh had left the company as per memorandum of understanding dated 14.4.1996 and in his place Isher Singh had joined the company as director and as such he had been wrongly implicated in the complaint. It was also stated by them that dispute raised by the complainant is of civil nature which stood settled between the parties on the basis of compromise arrived at between them in pursuance whereof, the complainant had received Rs. 10,000/- from the company on 8.5.1996. The stand taken on behalf of the accused was contested by the complainant. The learned Magistrate found no merit in the application filed by the accused and dismissed the same vide order dated 2.12.1999. Hence the present petition. 3. Learned counsel for the petitioners-accused while seeking quashing of the impugned order mainly contended before me that taking the allegation made in the complaint on its face value only civil liability of the petitioners-accused is spelled out and dishonour of the cheques issued by the accused would not per se attract the ingredients of Section 420 I.P.C. In support of the stand taken reliance was placed by him on Chhote Lal Aggarwal v. State of Punjab, 1987 (2) RCR (Cr.) 263 and Raminder Singh and others v. Darshan Singh, 1991 (1) RCR (Cr.) 447. There is no dispute with the law laid down in the above mentioned cases. 4. At the same time, the distinction between breach of contract and the offence of cheating came to be noticed by the Apex Court in Hridaya Ranjan Pd. Verma and others v. State of Bihar and another, 2000 (2) RCR (Cr.) 484, wherein it was observed as under : "In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." Coming to the facts of the present case, as already noticed above, the complainant instituted the complaint that at the time the petitioners-accused had approached the complainant, they had assured him that they would make the payment for the supply of Hessian cloth worth Rs. 84,500/- and Seba for Rs. 2410/- and thus induced him to despatch the goods to them making him to believe that they would pay the price of the goods on receiving the delivery of the same. It is also clear on record that at their instance cheques in question were presented for encashment in February 1996 by the complainant to the banker of the accused but the payment of those cheques was stopped by them. The circumstances brought on record prima facie bring the case within the ambit of provisions of Section 420 I.P.C. 5 The other ground taken in the petition that Surinder Pal Singh, accused ceased to be the director of the company on the date when the goods were supplied to the petitioners accused is a question of fact which has to be decided during the trial of the case. 6. For the aforesaid reasons, there is no merit in the petition and the same is accordingly dismissed.