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2004 DIGILAW 416 (GAU)

U. B. Engineering Ltd. v. Jatin Rajkhowa

2004-06-22

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. D. Das, learned Counsel appearing for the Petitioners. 2. This is an application for quashing of Complaint Case No. CR-740/2002 pending in the Court of Chief Judicial Magistrate, Bongaigaon. 3. The facts in brief are that the Respondent complainant is a contractor and he had undertaken sub contract work under Bongaigaon Refinery and Petrochemicals Ltd. The work was undertaken sometime in the year 1995 and according to the complainant, he executed work worth Rs. 60,19,732.48 and it is stated that the complainant was paid some amount and as on 29.9.2000 there is an outstanding amount of Rs. 8,60,000.00. The complainant apprehends that the said amount may not be released to him as several requests were made by him to accused persons but to no effect. The complainant, therefore, approached the Court for prosecution of the accused Petitioners as they have cheated the complainant by way of non payment of outstanding balance amount. 4. The learned trial Court after holding an enquiry Under Section 202 Code of Criminal Procedure issued process Under Section 406/420/34 IPC and hence, the present application Under Section 482Code of Criminal Procedure for quashing of the said proceeding. 5. Mr. D. Das, the learned Counsel for the Petitioners submits that this is a case of delay in payment and the complaint petition does not disclose any material for commission of offence Under Section406/420/34 IPC and as such the complaint is liable to be quashed. 6. The question whether a criminal prosecution could be permitted when the dispute between the parties is of predominantly civil nature, the appropriate remedy would be a civil suit. This was considered by the Apex Court in the case of Madhavrao Jiwajirao SC india v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 and the Apex Court held that if the allegations in the complaint axe both of a civil wrong and a criminal offence, there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. On consideration of the facts of that case, the Apex Court held that the ingredients of criminal offence are wanting and accordingly the proceeding was quashed in respect of two accused persons. On consideration of the facts of that case, the Apex Court held that the ingredients of criminal offence are wanting and accordingly the proceeding was quashed in respect of two accused persons. In a latter case of Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 , the Apex Court observed: "Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit." 7. In the case of Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370 where dispute was in respect of stridhan property, the Apex Court observed: "It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import." The Apex Court had occasion to examine its earlier decision on the matter in the case of Alpic Finance Ltd. v. P. Sadasivan, (2001) 3 SCC 513 . where in the Apex Court held as follows: The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil claim and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or condensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the Appellant is that the Respondents committed the offence under Section 420 IPC and the case of the Appellant is that the Respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or be lieves to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the Respondents made any wilful misrepresentation. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the Respondents made any wilful misrepresentation. Even according to the Appellant, the parties entered into a valid lease agreement and the grievance of the Appellant is that the Respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the Respondents and thereby the Respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception. 8. In the case of Hridaya Ranjan Deb Verma v. State of Bihar AIR 2000 SC 2341 , while considering the question of dishonest inducement the Apex Court held as follows: 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 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 his 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 held 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. 9. We, therefore, find that the complainant is required to show the intention of dishonest deceit. The Respondent complainant entered into the business dealing in the year 1995. On perusal of the complaint petition, we find that there was no whisper regarding any such deceit. 9. We, therefore, find that the complainant is required to show the intention of dishonest deceit. The Respondent complainant entered into the business dealing in the year 1995. On perusal of the complaint petition, we find that there was no whisper regarding any such deceit. As a matter of fact, the Petitioners had executed a sub contract work with the complainant and the complainant was paid regularly and out of 60 lakhs and odd, Rs. 52 lakhs and odd were paid to the complainant and the complainant had no grievance about that. For inducement to pay the balance amount of Rs. 8 lakhs and odd, we hold that the accused Petitioners were not involved with the offence of cheating as alleged by the complainant. The complainant will be at liberty to recover the amount due to him in accordance with law. But continuance of the criminal proceeding will be sheer abuse of the process of Court as the complaint petition does not disclose any commission of cognizable offence Under Section 406/420/34 IPC. 10. In the result, the revision petition is allowed. The proceedings in CR Case No. 740/2002 pending in the Court of Chief Judicial Magistrate, Bongaigaon stands quashed. Send down the records. Petition allowed