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2006 DIGILAW 1102 (MP)

Bhawani Shankar Mishra v. Jagdish Prasad Khare

2006-09-14

RAKESH SAKSENA

body2006
ORDER 1. Applicant has filed this revision against the order dated 20.12.1999 passed by the Judicial Magistrate I Class, Jabalpur in Criminal (Complaint) Case No. 1086/1998 whereby the application filed by the applicant under section 245 of the Code of Criminal Procedure was dismissed. 2. Brief facts of the case are that non-applicant-complainant filed a complaint against the applicant in the Court of Magistrate alleging commission of the offence under sections 406, 419 and 420 of IPC by him, contending that after his retirement, when he wanted to start some business, applicant-accused contacted him and assured him that he would allot him a shop for the business as he was constructing the shops at Anjuman Islamiya Shopping Complex, Malviya Chowk, Jabalpur. It was assured by him that the complainant would enter into an agreement with Anjuman Islamiya Trust in pursuance of an agreement between him and the Trust, under which he was constructing many shops at Malviya Chowk. In view of the assurance, complainant entered into an agreement with the accused on 23rd of November 1991, to purchase one of the shops, i.e., shop No. 52 measuring 200 sq.ft. on the first floor. The agreement was executed and the complainant paid Rs.65,000/- to accused in terms of the agreement. Complainant made payments time to time and ultimately amount of Rs.95,000/- was paid to the accused by 30th of Match 1995 as full and final payment. As there had been some delay in payment of instalments, the accused asked complainant to pay Rs.5,000/- more by way of interest, which he duly paid. 3. As per terms of the agreement, the complainant had to deposit Rs.25,000/- as caution money with Anjuman Islamiya Trust. Complainant, after full payment of Rs.95,000/-, on being asked by the accused approached Anjuman Islamiya Trust, but the Trust asked him to contact the accused. When complainant contacted accused, it was revealed that the said shop, i.e., shop No. 52 had already been allotted to someone else. Under the terms of the contract, the accused had to give vacant possession of the shop to him, but in spite of receiving full payment, accused did not allot or give possession of the shop to him and allotted the shop to somebody else. Thus, according to complainant, accused cheated him and also committed an offence of criminal breach of trust. Thus, according to complainant, accused cheated him and also committed an offence of criminal breach of trust. It was also alleged by the complainant that he sent notice to accused, but he neither allotted the shop to him nor returned the aforesaid money obtained by him. He lodged a report with the police, Gorakhpur, but no action was taken. 4. Complainant examined himself under section 200 of CrPC and witness Chandrapal Yadav under section 202 of CrPC and also tiled the copies of the agreement (Annexure A-1), copy of receipt of Rs.20,000/- dated 30.3.1995 (Annexure A-2), copy of registered notice (Annexure A-3) and the copy of the report given to Superintendent of Police, Jabalpur (Annexure A-4). 5. Learned Magistrate, on 12.10.1998, finding a prima facie case, registered the complaint under section 420 and 406 of IPC and issued the process. 6. Accused-applicant filed an application under section 245 of the Code of Criminal Procedure for being discharged, contending that the dispute between the parties was essentially of civil nature, being a case of simple breach of contract, as such, no case for framing charge against him was made out. He filed number of documents along with the application to show that the case was of civil nature. By the impugned order, the learned Magistrate dismissed the said application holding that on the facts as alleged in the complaint and the evidence adduced by the complainant, prima facie an offence under section 420 of IPC appeared to be made out against the accused. 7. Challenging the impugned order, learned counsel for the applicant submits that Anjuman Islamiya Trust had entrusted the construction of the shopping complex to applicant under an agreement whereunder applicant was entitled to allot the shops to purchasers after receiving the price and depositing of Rs.25,000/- with the Trust by the purchaser on the condition of payment of monthly rent to be paid to Trust. Shop No. 52 was desired to be purchased by the complainant for Rs.95,000/- in addition to the payment of Rs.25,000/- and the monthly rent to the Trust and an agreement to that effect was executed between the applicant and the complainant. Under the terms of the agreement, amount of Rs.50,000/- was paid by the complainant to applicant and balance of Rs.30,000/- was to be paid by 15.2.1992 and rest of amount of Rs.15,000/- was to be paid by 15.2.1992. Under the terms of the agreement, amount of Rs.50,000/- was paid by the complainant to applicant and balance of Rs.30,000/- was to be paid by 15.2.1992 and rest of amount of Rs.15,000/- was to be paid by 15.2.1992. After making full payment of Rs.95,000/-, the payment of Rs.25,000/- was to be made to the Anjuman Islamiya Trust. Complainant violated the conditions of the agreement. Since the complainant was not able to continue the deal, he requested that the shop be given to Narendra Kumar Sachdewa and then after some time again requested that he wanted the shop. Counsel submits that in case of default of payment of any instalment, it was stipulated that complainant would have to pay interest @ 2% per month for the period for which delay had been made and that if the delay in the payment was made beyond 30 days, from the due date of the payment, the applicant had a right to terminate the agreement without notice to him. In that case, the complainant was entitled to refund of the amount of premium paid after deducting an amount of Rs.20,000/-. Under these circumstances, since the complainant had made default in payment, the applicant was entitled to terminate his agreement. According to him, under such circumstances, if the applicant failed to give possession of the shop to complainant, it was merely a case of breach of contract and not of cheating. Placing reliance on the cases State of Kerala v. Pareed Pillai and another [ AIR 1973 SC 326 ], Nageshwar Prasad Singh alias Sinha v. Narayan Singh and another [1998 SCC (Criminal) 1378], Haridayala Ranjan Prasad Verma and another v. State of Bihar [(2000)4 SCC 169], Ajay Mitra v. State of M.P. & others [ 2003(1) JLJ 325 = (2003)3 SCC 11 ] and K.C. Builders and another v. Assistant Commissioner of Income Tax [ (2004)2 SCC 731 ], counsel submitted that the existence of fraudulent intention at the time of making promise or misrepresentation is a necessary ingredient for making out the offence of cheating, mere failure of the accused to keep up the promise, cannot be held sufficient to prove the existence of such intention right from the beginning. It should have been shown that his intention was dishonest at the time of making the promise. It cannot be inferred from the fact that he could not subsequently fulfill the promise. It should have been shown that his intention was dishonest at the time of making the promise. It cannot be inferred from the fact that he could not subsequently fulfill the promise. He submitted that the accusation against the applicant is groundless and even if the evidence and the material on record remains unrebutted, it would not be sufficient to warrant his conviction, as such, the applicant deserved to be discharged. 8. On the other hand, learned counsel for non-applicant submits that the applicant in the beginning paid Rs.65,000/- and thereafter he made full and final payment of Rs.95,000/- by paying the last instalment of Rs.25,000/- and Rs.5,000/- towards interest on 30.3.1995. At the time of receiving last instalment of Rs.25,000/- applicant did not inform the complainant that the possession of the shop had already been handed over to somebody else. Suppressing that fact he had obtained the money. If he intended to terminate the contract, he would have intimated this fact to non-applicant, but that was not done. Despite receiving full payment of Rs.95,000/-, as assured by him, he did not give vacant possession of the shop to him. According to him, on the allegations made in the complaint and evidence adduced by him, there is sufficient material and evidence on record for framing the charge against the applicant under section 420 of IPC. The act of applicant was not merely a breach of contract, it was a case of misrepresentation and deception amounting to the offence cheating. 9. Before appreciating the rival contentions of the parties, it is necessary to advert to the law in respect of the offence of cheating. Section 415 of IPC, which defines that cheating requires : "(1) Deception of any person. (2) (a) 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 (b) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property." In the definition there are two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 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 tine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but this subsequent conduct is not the sole test. In Nageshwar Prasad's case (supra) in an agreement to sale of land earnest money was paid to appellant as part consideration and possession of the land was transferred to the complainant, but the complainant laid the charge of cheating on the basis that appellant cheated them of the earnest money as he was not willing to complete the bargain. Under those circumstances, the apex Court held the prosecution to be of civil nature, as in performance of the part of his contract appellant had transferred the possession of land to complainant, which was sufficient indication of his bona fide intention. Similarly, in case of Ajay Mitra (supra), the parties to agreement were entitled to terminate the agreement by giving 12 months' notice to other party. When another company purchased the trade mark from the accused, the agreement with complainant was assigned to that company under information to the complainant and when that company gave 12 months' notice to the complainant before expiry of the period of 5 years to terminate the agreement, it was held that offence under section 420 was not made out in absence of means-rea. In K.C. Builders case (supra), it has been held that for establishing an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or misrepresentation. From his failure to keep up the promise subsequently, such a culpable intention right at the beginning, i.e., at the time when the promise was made cannot be presumed. From his failure to keep up the promise subsequently, such a culpable intention right at the beginning, i.e., at the time when the promise was made cannot be presumed. In Haridayal Ranjan Prasad Verma (supra) it was held that the allegations in the complaint, if read as a whole did not indicate, expressly or impliedly any intentional deception on the part of the appellant right from the beginning of the transaction, no offence under section 420 of IPC was made out. 10. On examining the material and the evidence on record of the case in hand, it appears that the fact situation here is entirely different. On the assurance of the applicant. non-applicant at initial stage paid Rs.65,000/- to accused. Accused had assured him of allotting shop No. 52 of the first floor of the complex. Though there had been delay and default in payment of the instalments of the premium by the complainant, but despite the applicant having right to terminate the agreement, as stipulated in the terms of agreement, he did not terminate the agreement and instead of refunding the money to complainant, he obtained further amount of Rs.20,000/- vide receipt Annexure A-2, on 30.3.1995. From the allegations in the complaint and the evidence of complainant recorded under section 200 of the Code of Criminal Procedure, it is apparent that despite applicant's receiving Rs.20,000/- on 30.3.1995, as final payment, the Trust declined to accept Rs.25,000/- from complainant and the shop was handed over to somebody else. Under such circumstances, at this stage, it cannot be held that there is no material on record to indicate that the charge of commission of offence of cheating is groundless and that the applicant had no guilty intention while assuring the complainant to give a shop to him and inducing him to deliver money, though he had no control over the shop assured to be given to him. 11. So far as the contention of learned counsel for the applicant that the documents filed by him in defence, along with the application under section 245 of CrPC, ought to have been considered by the trial Court is concerned, it is not acceptable in view of the law laid down by the apex Court in the case of State of Orissa v. Devendra Nath Padhi [ 2005(1) SCC 568 ]. At the stage of framing charge the case has to be examined only on the basis of material and evidence adduced by the complainant. At this stage, defence of accused cannot be accepted unless it can be deciphered from the material adduced by the complainant himself. In case of N.S. Nayak v. A.R. Antulay and another [ AIR 1986 SC 2045 ], it was held by the apex Court that section 227, 239 and 245 of the Code of Criminal Procedure contain some of the different provisions in regard to discharge of the accused. Notwithstanding these differences, there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under section 245(1) of CrPC is a preliminary one and the test of "Prima facie case" has to be applied. In spite of the difference in the language of the three sections, the legal provision is that if the trial Court is satisfied that the prima facie case is made out, charge has to be framed. 12. In view of the above discussion, I do not find any error or illegality in the impugned order passed by the Magistrate calling for the interference. Revision is accordingly dismissed.