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2012 DIGILAW 287 (GAU)

Ashish Deb v. Dixit Wine Shop

2012-03-01

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. With the help of this criminal petition, made under Section 482 Cr PC, the petitioners have sought for setting aside and quashing the complaint, which has given rise to Complaint Case No. 1290C/2009, presently pending in the Court of the learned Judicial Magistrate, First Class, Silchar, whereby the learned Court below has taken cognizance of offence, under Section 405/418 of the IPC and directed issuance of summons to the petitioners, the last date for appearance of the accused- petitioners being 22.12.2009. None has appeared on behalf of the accused-petitioners. However, heard Mr. S. Chakraborty, Learned Counsel for the complainant-opposite party. 2. Before entering into the merit of the present application, made under Section 482, Cr PC, the case of the complainant may, in brief, stated thus : The complainant is a constituted attorney of M/s. Dixit Wine Shop, which is a retail shop, situated at Premtola, Silchar. The said shop is run from rented premises; whereas the two accused-petitioners run their business under the name and style of M/s. S.B. Bond, which is a partnership firm of the accused-petitioners, situated at S.S. Road, Guwahati, with a branch at Meherpur, Silchar, and that are dealer and wholesaler of wine of different brands. The complainant ran a retail business of selling wine from his stop by purchasing wine of different quantities, from time to time, from the said firm of the accused-petitioners. In this regard, the accused petitioners issued a number of blank cheques, as security, for payment of the wine supplied to him by the accused-petitioners. During the last part of the year 2005 and the first part of the year 2006, the complainant suffered heavy loss in his business and, finally, the complainant's business unit became sick and, at that point of time, the accused-petitioners came to the complainant with the proposal to take over the business of the complainant through some mutual negotiations and, accordingly, an agreement was signed, on 20.07.2006, between the complainant, on the one hand, and the accused-petitioners, on the other. In terms of the agreement, so arrived at, the accused-petitioners were to take over the business of the complainant and manage the entire business of the complainant by meeting the requirement of working capital and also other requirements of the business for a period of 3 years commencing from 20.07.2006 and ending on 19.07.2009 and, in consideration of being allowed to carry on the business in the manner as aforesaid, the complainant to be paid by the accused-petitioners a sum of Rs. 15,000/- per month, within the first week of every succeeding month. The agreement also stipulated that the business was to be continued from the rented premises of the complainant and the accused-petitioners were to pay to the complainant not only the rent, but also the staff salary, electric charges etc. All the stocks of wine, lying at the said shop of the complainant, were to be handed over to the accused-petitioners, but the profit or loss of the business, so taken over by the accused-petitioner are to be borne exclusive by the accused-petitioners. However, though the accused-petitioners started the business of selling wine from the said rented premises of the complainant, the complainant was not paid the promised sum of consideration of Rs. 15,000/-, per month, nor were the other dues of the complainant, such as, staff salary, electric charges, etc., paid to the complainant despite demands being raised, in this regard, by the complainant from time to time. When the complainant pressed for money, the accused-petitioners, with a mischievous design, deposited the blank cheques, which the complainant had kept with the accused-petitioners, as part of the security, as already mentioned above, at the time, when he had been taking wine from the accused-petitioners for sale from his said shop. At the time of depositing the cheques for clearance thereof by the bank, there was no monetary liability of the complainant in terms of the agreement, which had been reached by the parties concerned. As the cheques were dishonoured, the accused-petitioners served legal notice on the complainant raising a demand of Rs. 3,98,728/-. The complainant replied to the said legal notice by pointing out that he was to be paid by the accused-petitioners as much as Rs. 8,63,454/- in terms of the agreement, dated 20.07.2006, reached between the complainant and the accused-petitioners. As the cheques were dishonoured, the accused-petitioners served legal notice on the complainant raising a demand of Rs. 3,98,728/-. The complainant replied to the said legal notice by pointing out that he was to be paid by the accused-petitioners as much as Rs. 8,63,454/- in terms of the agreement, dated 20.07.2006, reached between the complainant and the accused-petitioners. However, the accused-petitioners lodged a complaint, under Section 138 of the N.I. Act, 1881, and a case has been registered against the complainant. Thereafter, the complainant too, instituted, a complaint case against the accused-petitioners for recovery of the said amount of Rs. 8,63,454/-. The complaint, so made by the complainant, has given rise to Complaint Case No. 1290C/2009 aforementioned. After examining the complaint, under Section 200, Cr PC, and having recorded that the complainant has been able to make out a case under Section 405/418, IPC, the learned Court below directed issuance of summons to the accused-petitioners. 3. While considering the present application, made under Section 482, Cr PC, it needs to be noted that, in a proceeding for quashing of a complaint, the Court is required to proceed on the assumption that the allegations, made in the complaint, are true and, then, determine if the allegations, so made, disclose submission of any offence. What is also necessary to note is that, in an offence of cheating, as defined in Section 415, IPC, 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 the 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. 4. In the case at hand, when the allegations, made in the complaint are assumed to be true, it transpires from the subsequent conduct of the accused-petitioners, as alleged in the complaint, that the accused-petitioners never had the intention of making payment of Rs. 15,000/-, per month, to the complain, which the accused-petitioners had undertaken in terms of the agreement aforementioned, nor did they intend to make payment of the salary of the staff, the electric charges, etc., as had been stipulated in the said agreement. 15,000/-, per month, to the complain, which the accused-petitioners had undertaken in terms of the agreement aforementioned, nor did they intend to make payment of the salary of the staff, the electric charges, etc., as had been stipulated in the said agreement. The accused- petitioners are, thus, prima facie shown to have dishonestly induced the complainant to part with his shop, which the complainant would not have done, had he not been so induced and deceived by the accused-petitioners and, in consequence thereof, the complainant has sustained the loss of money. 5. In the circumstances mentioned above, it cannot be said that the complaint, in question, does not make out an offence of cheating. When a person cheats another person with the knowledge that he is likely to cause thereby wrongful loss to the other person, whose interest in the transaction, to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be taken to have committed offence of cheating under Section 418, IPC inasmuch as Section 418, IPC reads, "Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person, whose interest in the transaction, to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 6. In the present case, the allegations, made in the complaint, may or may not be true; but the Court has to proceed, as already pointed out, on the assumption that the allegations are true. On the basis of the assumption that the contents of the complaint are true, when the contents of the complaint, in question, are dispassionately considered, the contents are found to have made out a prima facie case of commission of offence under Section 418, IPC. In such circumstances, the question of quashing the complaint does not arise. 7. Because of what have been discussed and pointed out above, this Criminal petition fails and the same shall accordingly stand dismissed. Send back the LCR. Petition dismissed.