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2005 DIGILAW 693 (JHR)

Rajnikant v. State Of Bihar

2005-09-12

AMARESHWAR SAHAY

body2005
JUDGMENT Amareshwar Sahay, J. 1. In this application, the petitioners have prayed for quashing of the order dated 14.9.1998 taking cognizance of the offences under Sections 420/406/120B, IPC in connection with Complaint Case No. 401/1998. 2. The Opposite Party No. 2, Dhirendra Kumar Sinha, filed a Complaint Petition in the Court of CJM Ranchi against the petitioners making allegation of commission of the offence of cheating and criminal breach of trust and criminal conspiracy. 3. The case of the Opposite Party No. 2 as alleged in the Complaint Petition is that the accused petitioners were running a firm, namely, M/s. Ruchi Enterprises, Patna which was supplier of electrical goods. Against proposed supply of electrical goods the Opposite Party/Complainant had paid a sum of Rs. 1,55,000/- and Rs. 772.80 paise but it is alleged that on some plea or the other the goods were not supplied. Thereafter a notice under registered cover was sent through Advocate on 18.2.1998 whereby the accused petitioners were asked to pay the amount but they did not pay the same. Thereafter another reminder was sent on 6.3.1998. Then it is said that the accused persons came to Ranchi and assured that they will make payment within three months as there was marriage in their family. It is said that on 25.7.1998 again a request was made for payment of the aforesaid amount but accused persons flatly refused to make any payment and then the Complaint Petition was filed in the Court. 4. Learned CJM after examination of the complainant on solemn affirmation made over the case to the Judicial Magistrate, 1st Class under Section 192(ii) Cr PC for enquiry and disposal and thereafter the transferee Magistrate held enquiry under Section 202 Cr PC. 5. The transferee Magistrate by the impugned order dated 14.9.1998 after perusing the Complaint Petition, the statement on solemn affirmation of the complainant and the evidence brought on record oral and documentary during enquiry under Section 202 Cr PC took cognizance of the offences under Sections 420/406/120B of the IPC against the petitioners which has been challenged by the petitioner in the present application. 6. Mr. Dayal, learned Counsel appearing for the petitioners in support of the petition submitted that the allegations made by the complainant do not constitute any offence of criminal nature but it only discloses a simple business and commercial transaction. 6. Mr. Dayal, learned Counsel appearing for the petitioners in support of the petition submitted that the allegations made by the complainant do not constitute any offence of criminal nature but it only discloses a simple business and commercial transaction. It is further submitted in this regard that even the statement of the witnesses examined during enquiry under Section 202 Cr PC do not disclose the commission of the offence alleged under Sections 420 & 406, IPC. It is further submitted that for attracting the penal provision of 420,IPC, it has to be shown that the accused had the intention to cheat from the very inception but in the Complaint Petition not a single word has been alleged so as to come to the conclusion that from the very inception, the petitioners had any intention to cheat the complainant. As a matter of fact from the statement made in the Complaint Petition it would appear that it was a simple business transaction between the parties. It would appear that the Complainant had paid certain amounts against proposed supply of electrical goods and the petitioners admittedly had supplied certain quantity of goods against which payment was made, therefore, even if it is admitted that there was some amount due payable to the complainant at least the clam would be of civil nature and as such the remedy would lie before the Civil Court. In support of his submission he has relied on a decision in the case of "Sanjay Suchanti and Anr. v. State of Bihar and Anr." reported in Cases 2004 (3) Eastern India Criminal Cases page 413. 7. It appears that in the case of Sanjay Suchanti (supra) the Patna High Court, on the basis of the law laid down by the Supreme Court and by other High Courts held that to make out a case Under Section 420, IPC it is the intention which is the gist of the offence is required to be seen and gathered from the allegations made. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making promise. 8. On the other hand, Mr. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making promise. 8. On the other hand, Mr. R.S.P. Sinha, learned Counsel for the Opposite Party No. 2 has vehemently argued that from the allegation made in the Complaint Petition, particularly in paragraph No. 9 of the Complaint Petition it appears that the petitioner had intention to cheat the complainant since it is submitted that money was received by them and the materials were supplied and therefore a case under Sections 420 and 406, IPC was made out against the petitioners. 9. I have minutely gone through allegation made in the Complaint Petition and also the statement on solemn affirmation and the evidence of the witnesses examined during enquiry under Section 202 Cr PC and I find that there is no allegation against the petitioners either in the Complaint Petition or in the statement of the witnesses that at the very inception of the transaction between the parties the petitioners had any intention to cheat the complainant or the complainant was induced to pay the money with an intimation to cheat. As a matter of fact the materials on record disclose that it was a simple commercial and business transaction between the parties. The complainant had placed orders for supply of electrical goods and in fact, part of the orders were supplied also and therefore in my view the intention to cheat or mens rea to cheat is totally absent in the facts and circumstances of the case and at best it can be said to be a case of failure to fulfill the promise and/or breach of the agreement in course of business transaction. In the facts and circumstances of the allegations made no case for the offence under Sections 420 and 406, IPC is made out against the petitioners. 10. In view of my discussions and findings above, this application is allowed, the order dated 14.9.1998 taking cognizance as well as the entire criminal proceeding is hereby quashed.