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2009 DIGILAW 188 (JK)

Darshan Singh v. Ali Mohd. Makroo

2009-04-24

SUNIL HALI

body2009
1. A criminal complaint came to be filed before Chief Judicial Magistrate, Srinagar. It is alleged in the complaint that complainant was appointed as dealer by the accused for sale, service and spare parts of Tractors for Kashmir Province. The said business was carried in the name and style "Bajaj Tempo Limited". The name of the concern was changed from Bajaj Tempo Limited to M/s Force Motors Limited. It is further alleged in the complaint that the complainant was appointed as authorised dealer upto 31-3-2007 with a renewal clause. The accused has also supplied 11 tractors of quality "Balwan- 500" in 2007 when model machinery was of 2006. The other allegation contained in the complaint is that his dealership has been terminated by the accused person. This, in essence is the crux of the complaint. 2. The Chief Judicial Magistrate, Srinagar has issued process under section 420 of RPC. In order to attract provisions of section 420, it has to be disclosed in the complaint that the accused has fraudulently induced a person to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived. The act must disclose that by fraudulent and dishonest intention, a person is induced to deliver property to any person. 3. In the present case, there are only two allegations, which have been levelled in the complaint: a) that the dealership has been terminated. b) that the Tractor delivered in 2007 was of 2006 model. In order to examine the facts revealed in the complaint, it is to be seen whether offence under section 420 is made out. Section 420 RPC defines cheating as under : "Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived, and which act of omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat" 4. A bare reading of the aforementioned section clearly reveals that there are two elements namely, deception and dishonest intention to do or omit to do something. In order to bring a case within the first part of section 420, it is essential, in the first place, that the person, who delivers the property should have been deceived before he makes delivery, and in the second place that he should have been induced to do so fraudulently or dishonestly. Where property is fraudulently or dishonestly obtained, section 420 would bring the said Act within the ambit of cheating provided the property is to be obtained by deception. It is not necessary that the complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor it is necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. 5. The aforesaid discussion clearly reveals that deception must be from the inception. Applying text to the present case, following facts are to be observed: 6. The allegations in the complaint reveal that the dealership has been terminated and the Tractor delivered in 2007 was of 2006 model. The termination of the dealership does not constitute an offence. It is purely a case of contract. Regarding the fact that the Tractor delivered in 2007 was of 2006 model, no offence has been stated in the complaint which would indicate that petitioner was required to supply Tractor of 2007 model but instead he has delivered the Tractor of 2006 model. There is no averment to this extent in the complaint. Consequently, it can be stated that the person who delivers the property, should have been deceived before he makes the delivery. 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- Intention is the gist of the offence. 7. From the discussion made hereinabove, it can safely be stated that that the complaint does not disclose offence under section 420 RPC against the petitioner. 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- Intention is the gist of the offence. 7. From the discussion made hereinabove, it can safely be stated that that the complaint does not disclose offence under section 420 RPC against the petitioner. The trial court has without application of mind issued the process in mechanical manner. It seems that the Chief Judicial Magistrate was oblivious to position of law discussed hereinabove. He has completely mis-read the provision of section 420 before issuing the process. Mere reading of the complaint was sufficient to stop the Magistrate from issuing the process. He is required to be cautious in future not to issue process in the manner he has done in this case. I, therefore, quash the proceedings pending before the court below. Petition allowed alongwith connected Cr.MP.