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2004 DIGILAW 910 (PAT)

Sanjay Suchanti v. State Of Bihar

2004-09-08

MRIDULA MISHRA

body2004
Judgment Mridula Mishra, J. 1. Heard learned counsel for the petitioners and the counsel for opposite party No. 2. 2. This application has been filed for quashing the order dated 6-3-2003, passed by the Judicial Magistrate, 1st Class, Patna in Complaint Case No. 2526(C) of 2002 by which cognizance has been taken against the petitioners under Sections 406, 420/ 120B of the Indian Penal Code, 1860 . 3. Opposite party No. 2 filed a petition of complaint in the Court of Chief Judicial Magistrate, Patna on 9-12-2002 alleging offence of criminal conspiracy, criminal breach of trust and cheating. 4. The case of complainant as disclosed in the complaint petition is that the accused persons were doing film distribution business at Patna in the name and style of Anjana Movies (P) Ltd. On 17-5-2000 both the accused persons came to the complainant and requested for a help stating that they are in great need of two lacs rupees immediately for film distribution business. They requested the complainant to part with that amount by way of a friendly help. They assured that the amount will be positively refunded within two months and also assured that no portion of the amount will be misused or misappropriated. The complainant believing their words helped them in their crisis by paying two lacs of rupees vide Cheque No. 125935. After lapse of more than two months time, the accused persons show no intention to refund the amount even after repeated visit by the complainant. Subsequently accused No. 1 issued a cheque for Rs. 2 lacs but the same was dishonoured in the months of November, 2000. The accused persons requested the complainant not to file any case and assured for refund but after repeated visit till 7-12-2000 only a small amount was paid by them. After part payment a sum of Rs. 1,64,617.00 was yet to be paid by the accused persons. After a considerable period when the complainant found that the accused persons were not coming forward to refund the amount he visited their house at Patna on August, 2001 and was shocked to learn that the accused persons had left Patna for ever by transferring their house also. The people residing in the locality were not knowing regarding their departure or their whereabouts. However, the complainant with much efforts traced their address at Rajasthan, called them several times on telephone. The people residing in the locality were not knowing regarding their departure or their whereabouts. However, the complainant with much efforts traced their address at Rajasthan, called them several times on telephone. The accused persons assured that the amount will be paid but it proved to be false. Thereafter the complainant sent a registered legal notice to both the accused persons on 7-9-2002 and finally filed a complaint as they have committed offence of criminal breach of trust and cheating. After an enquiry u/s. 202 Cr. P. C. by the impugned order cognizance was taken against the accused petitioners and notices were issued to them at Jaipur, where they are permanently residing and work for gain by doing various types of business. 5. The petitioners case is that the complaint petition has been filed with an ulterior and mala fide motive by the opposite party complainant making false allegation. The allegation which is made in the complaint do not disclose a prima facie case constituting the offence under Secs. 406,420 and 120-B of the Indian Penal Code. It is specifically admitted by the complainant that he advanced an accommodation loan to the accused persons hence there is neither any question of cheating nor there is any question of entrustment nor breach of trust. Since the facts constituting offence under Secs. 406, 420 and 120 B which is essential is lacking in the complaint petition, as such the continuation of proceeding will amount to be an abuse of the process of Court. It is well settled that the facts which is disclosed in the complaint petition if on the basis of that no prima facie offence is made out. The complainant cannot supplement subsequently any evidence oral or documentary beyond his case as stated in the complaint petition. The learned Magistrate should have confined himself to the provision of sec. 190, Cr.P.C. while taking cognizance. The statement of complainant on solemn affirmation and the deposition of the witnesses also completely failed to make out the allegation of cheating and criminal misappropriation. It has further been submitted by the counsel for the petitioner that once it is admitted by the complainant that it was a friendly loan advanced to the accused persons by him, in that case no offence for criminal breach of trust, cheating or misappropriation can be made out. It has further been submitted by the counsel for the petitioner that once it is admitted by the complainant that it was a friendly loan advanced to the accused persons by him, in that case no offence for criminal breach of trust, cheating or misappropriation can be made out. In a friendly loan, there is no ingredient of entrustment and there cannot be any intention of misappropriation or misuse of money entrusted to the accused. 6. Counsel for the petitioner has placed reliance in the case of Hridaya Ranjan Prasad Verma V/s. State of Bihar, (2000) 4 SCC 168 . In this case criminal proceeding was initiated for the alleged offence under Secs. 406, 420 and 120B of the Indian Penal Code which was quashed. In this case the accused persons entered into an agreement to sell their land to Co-operating Housing Society for a consideration of Rs. 16,00,000.00 and also received the amount, but subsequently the complainant came to know that the accused persons have given false, concocted and wrongful information regarding their title over the property as such an allegation was made that they have committed an offence under Secs. 406, 420 and 120B of the Indian Penal Code, 1860 . The Supreme Court on consideration of entire facts and circumstances of the case came to a finding that u/s. 415 of the Code which defines cheating requires (1) deception of any person (2) fraudulently or dishonestly inducing that person (i) to deliver any property to any person or (ii) to consent that any person shall retain any property or intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not to be deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, in mind, reputation or property. 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. 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. 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. 7. From reading the averments in the complaint in their entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All that the complainant has alleged against the accused petitioners is that they were in need of money they requested the complainant to enhance help by giving them money and they also promised that it will be returned within two months. From the facts it is also apparent that part payment was made by the accused, therefore, from the facts stated in the complaint, there is nothing to show that there was any inducement by the accused-petitioners and there was any intention on the part of the accused petitioners to deceive the complainant. Simply it can be said that the petitioners failed to fulfil their promise it can be breach of contract or breach of agreement, but it cannot be a criminal breach of trust making out a criminal liability against the petitioners. Simply it can be said that the petitioners failed to fulfil their promise it can be breach of contract or breach of agreement, but it cannot be a criminal breach of trust making out a criminal liability against the petitioners. Counsel for the petitioners has also relied on a decision in the case of G. Sagar Suri V/s. State of U.P. reported in 2000 AIR SC 754, wherein it has been held that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 8. On consideration of the entire facts and circumstances of the case, the material brought before me, I come to the conclusion that this is a case in which the jurisdiction u/s. 482 can be exercised for quashing the impugned order as the facts alleged in the complaint petition do not make out a prima facie case under Secs. 406, 420 and 120B of the Indian Penal Code, 1860 . Accordingly the order impugned dated 6-3-2003 passed by the Judicial Magistrate, 1st Class, Patna is hereby quashed and this application is allowed.