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2011 DIGILAW 1087 (JHR)

Jagdeep Singh v. State of Jharkhand

2011-12-12

POONAM SRIVASTAV

body2011
ORDER Heard Mr. Ananda Sen, learned counsel appearing on behalf of the petitioner, Mr. R.N. Roy, learned Government Pleader No. III, appearing on behalf of the State of Jharkhand-respondent no. 1 and Mr. Manish Kumar, learned counsel appearing on behalf of respondent no. 2. 2. Prayer in the instant writ petition is for quashing the entire criminal proceedings including the order taking cognizance dated 13th May, 2009 passed by Shri Arvind Kumar No. II, Judicial Magistrate, Jamshedpur in C/1 Case No. 2245 of 2008. The cognizance is taken for an offence under section 420 of the Indian Penal Code. The complaint is annexed as Annexure 1 and the order taking cognizance and summoning the accused dated 13th May, 2009 is Annexure 2 to the writ petition. 3. Learned counsel has placed the entire complaint. There was certain agreement between the petitioner and the first informant-respondent no. 2 for supply of M.S. Foundation Bolt on credit. The allegation is that accused no.1, Manager of M/S United Engineering Company, a proprietorship firm, entered into an agreement for supply of the material on payment of cost. Paragraph 4 of the complaint specifically mentions that Rs. 1,00,000/- (Rupees One Lac) was paid on 6th august, 2008 by cheque and after supply of M.S. Foundation Bolt, the accused persons sent another cheque of Rs. 89,999.91 Paise on 10.10.2008. The second installment of payment was part payment of the total dues of Rs. 2,53,658.38 Paise. The accused declined to make a complete payment on the ground that the material supplied was short and, accordingly, they are not required to pay, hence the complaint was filed. 4. Submission on behalf of the petitioner is that no doubt in paragraph 17 of the complaint, the allegation is that the accused had intention to cheat the complainant from inception of the deal but the preceding paragraph of the complaint unequivocally admits the payment of installment. It is emphatically argued that in the event the petitioner had no intention to make any payment or cheat the complainant, nothing would have been paid, but since there was a dispute regarding shortage in supply, therefore, the payment was withheld. Emphatic submission is that the entire amount was paid for supply. The complainant was demanding excess amount despite the fact that complete order was not fulfilled and the supply fell short of the order. 5. Emphatic submission is that the entire amount was paid for supply. The complainant was demanding excess amount despite the fact that complete order was not fulfilled and the supply fell short of the order. 5. Counsel appearing on behalf of the complainant, on the other hand, tried to demonstrate that the petitioner had a malafide intention of not paying the complete amount right from the beginning of the contract and it was for these reasons, the payment was made in two installments and almost half of the amount is withheld. The petitioners have committed an offence under section 420 of the Indian Penal Code which can only be substantiated after leading evidence during the trial and, therefore, the writ petition is liable to be dismissed. 6. I have heard the respective counsel at length, gone through the record, perused the complaint and also the counter affidavit. 7. A close scrutiny of the complaint apparently denotes that the ingredient of section 420 of the Indian Penal Code is completely missing. There is nothing to substantiate the mens rea of the petitioner that he had any intention of taking the goods without payment and consequently 'cheat' the complainant. At the maximum, it can be inferred on a bare perusal of the complaint that on account of some dispute or other, the petitioner tried to wriggle out of the balance payment on the pretext that supply was incomplete at a subsequent stage. The settled principle of law and requirement of section 420 of the Indian Penal Code, on the face of it, does not satisfy the requirement to complete the offence. In fact, criminal proceedings have been initiated only to wheild pressure on the accused to part with the demanded amount without questioning the other party. In fact, the allegations establish that it is a contractual matter and there appears to be some breach of part payment. This dispute involves civil consequences and institution of criminal proceedings are, therefore, liable to be quashed. In my considered opinion, the prosecution commenced at the behest of respondent no. 2 and is only a pressurising tactic. The petitioner is a businessman and such transactions are inevitable. There being certain disputes relating to payment or other business transactions, cannot lead to an inference and constitute a criminal 'mens rea'. 8. In my considered opinion, the prosecution commenced at the behest of respondent no. 2 and is only a pressurising tactic. The petitioner is a businessman and such transactions are inevitable. There being certain disputes relating to payment or other business transactions, cannot lead to an inference and constitute a criminal 'mens rea'. 8. It is settled principle of law that the existence of ingredients to constitute an offence under section 420 of the Indian Penal Code is 'mens rea' i.e. fraudulent intention or intention to cheat is at the very initial stage of commission of the offence. The offence 'cheating' is defined in section 415 of the Indian Penal Code. To constitute cheating under this section, there must be-- (1) deception of any person and thereby, (2)(a) fraudulently or or dishonestly inducing that person-- (i) to deliver any property to any person, 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 harm to that person in body, mind, reputation or property. 9. There is a difference between cheating and breach of contract. The distinction was drawn in a catena of decisions. No doubt it is only a fine line which draws distinction but the conclusion is derived from the intention of the accused at the time of inducement for which a subsequent conduct may be necessary to judge but this cannot be made the sole criteria. Mere breach of contract cannot give rise to a criminal prosecution. In the case of Unnie Menon vs. Kerala Film Artists and Critics Society and others [(1986) 3 Crimes (HC) 411], it was held that in the absence of primary ingredient of an allegation that accused dishonestly or fraudulently induced the complainant to do an act, the offence of cheating cannot be constituted. Similar view was expressed in the case of Banwarilal Agarwal and others vs. Suryanarayan and State (1994 CRI. L. J. 370). 10. In the facts and circumstances, the criminal complaint as well as the entire proceedings do not fulfill the requirement of law and, consequently, liable to be quashed. 11. The writ petition is, accordingly, allowed. The proceedings are quashed.