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Madhya Pradesh High Court · body

2006 DIGILAW 1348 (MP)

Haroon Khan v. State of M. P.

2006-11-28

S.C.VYAS

body2006
ORDER 1. This is a petition under S. 482 of the Code of Criminal Procedure preferred by petitioner accused for quashment of the impugned order dated 24.10.2005 passed in Criminal Case No. 323 of 96 whereby the learned trial Magistrate took cognizance against the petitioner for commission of offences under S. 420, 422 and 406 of the Penal Code, which was confirmed in criminal revision No. 182 of 05 vide order dated 17.2.2005, preferred by petitioner accused. 2. Respondent No. 2 Maheshchandra had filed a private criminal complaint against the petitioner on the allegation that bus bearing Registration No. MBO 967 (Model 1986) was purchased by petitioner after obtaining advance from respondent No.2 and after entering into an hire purchase agreement, an amount of Rs.2.00 lakhs was advanced which was to be repaid in 36 equal monthly instalments. But the petitioner had paid only 9 monthly instalments and thereafter stopped the payment. It has also been averted that entry of hire purchase agreement was not got made in the registration book of the vehicle intentionally and deliberately with an ulterior motive. After some time taking benefit of the aforesaid act he got finance from another finance company on the same bus and thereby cheated the complainant respondent No.2 by causing wrongful loss to the complainant and wrongful gain to himself. 3. Learned counsel for petitioner submitted that if all the facts alleged in the complaint are accepted in its entirety, even, then, no offence, as alleged, is made out against the petitioner. The dispute as alleged by the complainant respondent against the petitioner is purely of civil nature. The respondent complainant had filed a civil suit against the petitioner which has been dismissed and just to recover the amount of finance by way of applying pressure tactics, this false criminal complaint has been filed. 4. Per contra, learned counsel for respondent submitted that from the very beginning the intention of the petitioner was to deceive the complainant and that is why the entry with regard to hire purchase agreement was not got made in the registration book of the financed vehicle and taking benefit of aforesaid lapse, another finance amount was obtained. This conduct of the petitioner clearly prima facie proves all ingredients of the offence of cheating. 5. This conduct of the petitioner clearly prima facie proves all ingredients of the offence of cheating. 5. Considering the rival contentions advanced by counsel for both the parties and averments made in the complaint, this Court is of the view that petition should be allowed. It is a trite law that if the allegations made in the complaint are accepted in its entirety, do not make or constitute an offence of cheating, then, such criminal proceedings can be quashed by exercising powers conferred under S. 482 of the Code, as has been held in the matter of State of Haryana v. Bhajanlal [ 1992 CrLJ 527 ]. 6. In the matter of Alpic Finance Ltd. v. P. Sadasivan and another [2001 CrLR 217] the apex Court again has held that if there is no allegation that accused made any willful misrepresentation and parties entered into valid lease agreement and the grievance of the appellant (complainant) is that respondent failed to discharge his contractual obligations and, in the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby respondents parted with the property then in scuh circumstances even if the accused failed to pay his debt, he does not necessarily evade the debt by deception. 7. The facts of present case appears to be almost similar to the matter of Alpic Finance (supra) and the case in hand except non payment of future instalments and obtained another finance on the same vehicle, nothing has been averted in the complaint against the petitioner to show that he thereby deceived the complainant at the time of entering into contract and misrepresented certain facts. It appears that the etnire transaction between the parties is purely of civil nature. As per hire purchase agreement some instalments have been paid, on account of the alleged default in payment of instalments, the respondent went to civil Court by filing a suit for recovery of the remaining amount and when the civil suit was dismissed, then criminal complaint was filed. It is true that scope civil and criminal litigation are different. 8. As alleged the vehicle in question is still stand in the name of petitioner and there is no allegation against him that he had sold the bus to someone else. It is true that scope civil and criminal litigation are different. 8. As alleged the vehicle in question is still stand in the name of petitioner and there is no allegation against him that he had sold the bus to someone else. Thus, it appears that criminal complaint has only been filed just to recover the remaining amount of finance which are outstanding and due against the petitioner. 9. To prove an offence of cheating, it is necessary to establish wrongful loss caused to the complainant and wrongful gain obtained by the accused. In the case in hand, hire purchase agreement has been executed between the parties and on the basis of the said agreement, a civil suit was filed for recovery of the outstanding amount against the petitioner. Only because another finance amount was also obtained by the petitioner or that necessary entry regarding hire purchase has not been made in the registration book of the vehicle issued by RTO, it cannot be said that the complainant was deceived. The alleged entry of hire purchase could have been made by RTO at the request of complainant himself. There is no bar under the provisions of any law which prohibits petitioner from taking second finance on the same property. Therefore the grounds as alleged in the complaint are not sufficient to show that the intention of petitioner was to deceive the complainant. 10. Thus, after examining the averments made in the complaint, the Court feels that necessary ingredients of the offence punishable under S. 420 or 406 of the Penal Code are totally missing and learned trial Magistrate has committed an error in taking cognizance of the aforesaid offence against the petitioner. 11. Therefore exercising the powers of S. 482 of the Code, the proceedings of Criminal Case No. 323 of 1996 are hereby quashed.