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2012 DIGILAW 272 (GAU)

SriKant Sharma v. Angelous D. Topno

2012-02-28

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. With the help of this application, made under Section 482, Cr PC, the petitioner, who is accused in Complaint Case No. 565c/06, pending in the Court of the learned Sub-Divisional Judicial Magistrate, Dibrugarh, has sought for setting aside the order, dated 21.112006, passed by the learned Sub-Divisional Judicial Magistrate, Dibrugarh, in the case aforementioned, directing issuance of process against the accused-petitioner for offences allegedly committed under Sections 420 and 403, IPC.I have heard Mr. P. Bora, learned counsel for the accused- petitioner, and Mr. P.J. Saikia, learned counsel for the complainant-opposite party. 2. The case of the complainant may, in brief, be described thus : (i) The accused No. 1, namely. M/s. Neelam Steel Industries, is a proprietary firm with accused No. 2 as its sole proprietor. Accused No. 2 executes various works contract in the name of accused No. 1 and also supplies articles and goods, on contractual basis, to the Army, Railways, and various other Government and semi-Government departments at various places. (ii) The complainant, who is a retired employee of the Central Government, had good relation with accused No. 2, who used to visit the house of the complainant. Sometime in the month of July, 2002, accused No. 1 was required to supply goods and materials to the Army; but, as he had no sufficient money at that point of time, he started visiting the complainant's house and requested the complainant, on several occasions, to advance to him (accused No. 2) a loan of Rs. 5,00,000/- and assured the complainant that, upon receipt of bills from the Army, he would pay to the complainant, an amount of Rs. 80,000/-, as additional amount, besides repaying the loan amount of Rs. 5,00,000/-. As the complainant agreed to the offer, so made by the accused No. 2, a deed of agreement was executed between the parties concerned, whereunder the accused No. 2 received, on 23.08.2002 and 24.08.2002, from the complainant a sum of, in all, Rs. 5,00,000/- by way of two different cheques. The accused No. 2 issued, in the name of accused No. 1, receipts to the complainant acknowledging the receipt of the said amount of Rs. 5,00,000/-. (iii) Thereafter, the accused No. 2, again, approached the complainant, on 18.11.2002, and requested him to give another sum of Rs. 1,50,000/-, stating that his whole business would be ruined if he does not receive Rs. 5,00,000/-. (iii) Thereafter, the accused No. 2, again, approached the complainant, on 18.11.2002, and requested him to give another sum of Rs. 1,50,000/-, stating that his whole business would be ruined if he does not receive Rs. 1,50,000/- inasmuch as he (accused No. 2) would not get his bills paid by the Army. The accused No. 2 also promised the complainant to pay him an additional amount of Rs. 25,000/-along with the loan amount of Rs. 1,50,000/-. Another agreement was accordingly executed between the parties concerned, whereupon the complainant paid to the accused an amount of Rs. 1,50,000/- and the accused No. 2 acknowledged the receipt thereof by handing over a receipt, in this regard, to the complainant. (iv) After obtaining loan from the complainant, the accused, however, did not return the money despite repeated requests and demands made by the complainant. On repeated requests of the complainant, accused No. 2 issued to the complainant, as security deposit, two cheques, dated 18.12.2003 and 28.12.2003, amounting to a sum of Rs. 4,00,000/-. (v) Though the complainant, thereafter, requested the accused, on several occasions, to return the loan amount, the accused persons did not return the money on one pretext or another, though the accused persons had received the bills from the Army. (vi) Lastly, all 31.10.2006, the complainant met the accused No. 2 in the Court premises and, upon being asked by the complainant to return the loan amount, accused No. 2 got angry and threatened the complainant by saying that the complainant was free to file as many cases as the complainant would like, but he would not get back his money. 3. While considering the present application made under Section 482, Cr PC, it needs to be noted that the offence of cheating has been defined in Section 415, IPC, which reads as under : 415. 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 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, is said to 'cheat. 4. 4. The ingredients of offence of cheating, as defined in Section 405, IPC, are : (1) Entrusting any person with property or with any dominion over property, (2) That person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation- (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust. 5. Two important ingredients, which are required to be established in order to make out a prima facie case for an offence under Section 420 IPC, are (i) whether there was any act of inducement on the part of the accused; and (ii) whether the accused had any intention to cheat the complainant, from the very inception, if the dispute between the parties was, essentially; a civil dispute resulting into breach of contract on the part of the accused by not refunding the amount, which was, if the complainant is telling the truth, received by the accused from the complainant as loan, the same would not constitute an offence of cheating. In the case at hand, the complaint shows that accused No. 2 did induce the complainant to advance to the accused persons the loan on two occasions as mentioned in the complaint and as indicated above. 6. Pointing out the act that the accused-petitioner had issued two cheques for Rs. 4 lakhs, Mr. Bora, learned counsel for the petitioner, contends that had the accused the intention to cheat the complainant, he would not have given any cheque to the complainant. The act of the accused-petitioner, in giving the cheques for Rs. 4 lakhs to the complainant, shows, according to Mr. Bora, that the accused-petitioner had no intention at all to cheat the complainant, rather, the intention of the accused-petitioner, while giving the cheques to the complainant, was bona fide. 7. Reacting to the above submissions, Mr. P.J. Saikia, learned counsel for the complainant-opposite party, points out that in the complainant's statement, recorded under Section 200, Cr PC, the complainant made it clear that the accused had issued the cheques to the complainant, because the complainant insisted on getting his money back and that the accused had no money at that point of time. P.J. Saikia, learned counsel for the complainant-opposite party, points out that in the complainant's statement, recorded under Section 200, Cr PC, the complainant made it clear that the accused had issued the cheques to the complainant, because the complainant insisted on getting his money back and that the accused had no money at that point of time. So far as the contents of the present complaint are concerned, when they are read by assuming the contents to be true, further points out Mr. Saikia, they do make out a case of commission of offence of cheating. 8. Merely because of the fact that the accused-petitioner had issued cheques for Rs. 4 lakhs, one cannot really, at this stage hold, in the absence of anything else, and, particularly, when the accused-petitioner has not made any payment of the whole or 'part of the amount despite the fact that he had already received the bill, that the accused-petitioner had the intention to repay the loan. 9. The situation, in the case at hand, can be explained by an illustration' : If a person induces another person to give him loan of Rs. 1 lakh and gives him a cheque, as a security, with the promise that he would make good the payment on receiving his bills, which he has raised, and when the person, who has obtained the loan, does not repay his loan despite receiving payment of his bills, it cannot lead to quashing of the complaint filed against him for cheating merely because he gave a cheque, as security, for the loan that he had taken. Eventually, it is the initial intention of a person, which is relevant, and, for this purpose, not only the previous or contemporaneous conduct, but even subsequent conduct of accused would be relevant. Whether or not a person has really committed an offence of cheating is a question to be determined by investigation or at trial. 10. Coupled with the above, it is extremely important to note that the accused had made the promise of repayment of loan on receiving the bills from the Army and the complainant alleges that though the bills had been received by the accused, yet the loan was not repaid as had been promised by the accused. 10. Coupled with the above, it is extremely important to note that the accused had made the promise of repayment of loan on receiving the bills from the Army and the complainant alleges that though the bills had been received by the accused, yet the loan was not repaid as had been promised by the accused. The act of the accused in inducing the complainant to advance money in the form of loan, and not returning his money or any part thereof, and, above all, not making payment of any amount whatsoever to the complainant despite having received the bills, cannot, at this stage, be said not to constitute offence of cheating inasmuch as the accused induced, as the allegations made in the complaint show, the complainant to give him (accused No. 2) money, which the complainant would not have given had he not been so induced by the accused and the conduct of the accused indicates, at this stage, that he never had the intention of making good the promise which he had made, while inducing the complainant as indicated above. Whether the allegations, so made in the complaint, are true or false is a matter to be answered at the trial. By no means, the contents of the complaint, when read as a whole, can be said not to disclose ingredients of offence of cheating as defined by Section 415, IPC. When the allegations, made in the complaint, reveal, if the allegations are true and taken at their face value, the commission of offence of cheating, as in the case at hand, such a complaint cannot be quashed by taking recourse to Section 482, Cr PC. 11. Situated thus this Court is of the view that the accused-petitioners have not been able to make out any case warranting exercise of this Court's power under Section 482, Cr PC This application, made under Section 482, Cr PC, therefore, fails and the same shall accordingly stand dismissed. Send back the LCR. Application dismissed.