Judgement S P Wangdi J [1] This Criminal Misc. Case arises out of General Register Case No. 94 of 2008, under Section 409/420 of the Indian Penal Code ('IPC for short), arising out of Gangtok Sadar Police Station Case No. 65(5)07 dated 11th May, 2007, pending before the Court of the Learned Judicial Magistrate, East Sikkim at Gangtok, wherein the petitioner has been required to appear and answer on the charges as herein stated. [2] Mr. Subrata Kumar Roy Karmakar, the learned Counsel appearing on behalf of the petitioner, submits that a bare reading of the First Information Report read with the Charge-Sheet filed by the police, do not disclose any offence under Section 409 and Section 420, IPC, and, therefore, the proceedings pending before the Learned Judicial Magistrate requires to be quashed. In support of his submission, a large number of decisions have been cited, amongst which is the decision in the case of R. Kalyani v. Janak C. Mehta and others, 2009 1 SCC 516 where the principle of law under Section 482, Cr.P.C. 1973 as enunciated in the case of State of Haryana and others v. Bhajan Lai and others, 1992 Supp1 SCC 335 has been re-emphasised. He further submits that from the contents of the FIR it is quite obvious that the matter relates to a contractual dispute between the petitioner and the respondent No. 1, and, therefore, is purely civil in nature. [3] Mr. Tashi Norbu Basi, the learned Counsel appearing on behalf of the respondent No. 1, submits that the conduct of the petitioner of not having paid the amounts prescribed in the Deed of Lease regularly and of him having left the place without any notice, as also the fact that he had made payment of certain sum by way of a cheque which later bounced, would clearly lead to the inference of the offence having been committed, at least prima facie, by the petitioner. Mr. Basi further submits that even if it is to be accepted that the dispute between the parties is essentially civil in nature, yet it does not debar the respondent No. 1 from instituting a criminal proceeding against the petitioner, if any offence is made out. [4] Mr. Mr. Basi further submits that even if it is to be accepted that the dispute between the parties is essentially civil in nature, yet it does not debar the respondent No. 1 from instituting a criminal proceeding against the petitioner, if any offence is made out. [4] Mr. Karma Thinlay Namgyal, the learned Additional Public Prosecutor appearing on behalf of the State - Respondent No. 2, has placed before this Court the case of Indian Oil Corporation v. NEPC India Ltd. and others, 2006 6 SCC 736 to emphasise on the point that a criminal proceeding can be initiated even if a dispute is essentially of a civil character. [5] Heard and considered the rival submissions of the learned Counsels appearing on behalf of the parties and perused the records produced before me. The essential requirement under Section 420, IPC which is the foundational allegation against the petitioner, is deceit by a person who fraudulently or dishonestly induces another person to deliver any property. In other words, deceit is the essential ingredient that requires proof of its existence right at the inception of the transaction. We may reproduce Section 420, IPC for convenience : "420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." [6] Section 415, IPC, as is evident, is the genus, and whereas Section 420, IPC alleged in the present case is its species and therefore, in establishing the offence under the latter provision, the ingredients of the former would necessarily have to be satisfied. [7] I have perused the FIR which reads as under:- "The Officer-in-charge Sadar Thana Gangtok, Sikkim. Date: 11th of May, 2007 Subject: First Information Report Sir, I, the undersigned, beg to lodge a F.I.R. against Shri Mintu Singha Roy, S/o Shri T. K. Singha Roy, Vill P.O. B/9- 163 Kalyani, District Nadai 741235, West Bengal. The facts and circumstances of the matter are as follows :- 1. Date: 11th of May, 2007 Subject: First Information Report Sir, I, the undersigned, beg to lodge a F.I.R. against Shri Mintu Singha Roy, S/o Shri T. K. Singha Roy, Vill P.O. B/9- 163 Kalyani, District Nadai 741235, West Bengal. The facts and circumstances of the matter are as follows :- 1. That Basar Residency, a hotel in Tibet Road, Gangtok is owned and registered in the name of Shri Tenzing Yarphel, Son of Late Shri B. Tshering, resident of Tibet Road, Gangtok, Sikkim. 2. That concerning Basar Residency, I have been authorized and entrusted to do all such acts as I believe to be beneficial for Shri Tenzing Yarphel. 3. That on a request made by Shri Mintu Singha Roy, Basar Residency had been rented out to him for three years from the 1st of September, 2004 to the 31st of August, 2007. 4. That the annual rent for Basar Residency agreed upon and payable by Shri Mintu Singha Roy was Rs. 8,50.000/- (Rupees Eight Lakhs, Fifty Thousand only) per year which was subject to an increase of 10% per year and payable at the beginning of each year of rent. 5. That as of the 1st of September, 2005 one more floor was added to Basar Residency and accordingly the annual rent agreed upon and payable for this floor was Rs. 3,00,000/-(Rupees Three Lakhs only) per year (subject to an increase of 10% per annum). He once made a payment by cheque which bounced and hence cheated us. He also threatened my wife through cell with hurt and other dire consequences. 6. That as the annual rent increased by Rs. 3,00,000/- per annum due to addition of one more floor to Basar Residency, on a request made by Shri Mintu Singha Roy, the 10% annum increase in rent was not implemented for the year 2005-2006. 7. That hence, the total rent per annum agreed upon and payable by Shri Mintu Singha Roy for the period 1st of September. 205 to the 31st of August, 2006 was Rs. 11,50,000/- (Rupees Eleven Lakhs, Fifty Thousand only) per year. 8. That the rent payable by Shri Mintu Singha Roy from the 1st of September, 2006 to the 31st of August, 2007 was Rs. 12,65,000/- (Rupees Twelve Lakhs, Sixty Five Thousand only). 9. 205 to the 31st of August, 2006 was Rs. 11,50,000/- (Rupees Eleven Lakhs, Fifty Thousand only) per year. 8. That the rent payable by Shri Mintu Singha Roy from the 1st of September, 2006 to the 31st of August, 2007 was Rs. 12,65,000/- (Rupees Twelve Lakhs, Sixty Five Thousand only). 9. That as of the date of this F.I.R. the unpaid rent owed by Shri Mintu Singha Roy to Shri Tenzing Yarphel is :- Unpaid rent till 31st of Rs. 75,000/- September, 2006 Unpaid rent for 2006-2007 Rs. 12,65,000/- Rs. 1340,000/- Total due :- Rs. 13,40,000/- (Rupees Thirteen Lakhs, Forty Thousand only) plus electricity, water and sewerage charges as of 1st Sep., 2006 As all my efforts to contact Shri Mintu Singha Roy has been in vain. I now believe that Shri Tenzing Yarphel has been defrauded and that Shri Mintu Singha Roy has absconded with Shri Tenzing Yarphel's money. That I am filing this F.I.R. because Shri Tenzing Yarphel is in Delhi and due to commitments made by him, he is unable to come to Gangtok. I would be most grateful if this matter could be investigated and efforts be made to ensure that law and justice is upheld. Thanking you, Yours sincerely Sd/- 11/5/07 Mr. Tashi Norbu Basi Advocate Basar Residency Tibet Road, Gangtok, Sikkim" [8] The Charge-Sheet filed by the police also may be reproduced below for convenience :- That on 11-05-07 at around 19.15 hours received a written FIR from Shree Tashi Norbu Basi (Advocate) Basar Residency, Tibet Road Gangtok, against one Mintu Sinha Roy of son of Shri T. K. Singha Roy, of Village Kalyani, District Nadia, West Bengal with the submission as under :- That on a request made by accused Mintu Singha Roy Hotel Basar Residency which is owned by Shri Tenzing Yarphel was rented out to him for a period of 3 years w.e.f. 01-09-2004 to 31-08-2007 with the annual rent of Rs. 8,50,000/- (Eight Lakhs Fifty Thousand) only subject to an increase of 10% per year and payable at the beginning of each year of rent. That one more floor was added to Hotel Basar Residency w.e.f. 01-09-2005 which was also rented out to him at the rate of Rs. 3,00,000/- (Three Lakhs) only per year subject to an increase 10% per year annum. That one more floor was added to Hotel Basar Residency w.e.f. 01-09-2005 which was also rented out to him at the rate of Rs. 3,00,000/- (Three Lakhs) only per year subject to an increase 10% per year annum. The annual rent was reportedly agreed upon by the accused Mintu Singh Roy and had once made a payment by cheque which was bounced and thus cheated. That the said accused person has reportedly absconded without paying the rent to the tune of Rs. 13,40,000/- (Thirteen Lakhs Fourty Thousand) only excluding electricity, water Supply and sewerage bills and has therefore defrauded Shri Tenzing Yarphel the owner of the property who is reportedly staying in Delhi and he is unable to come to Gangtok due to some commitment. On the basis of the FIR, Sadar RS. case No. 65(05)07, dated 11-05-07 u/S. 409, IPC and was registered and endorsed to me for investigation. During the course of investigation, inspected the property i.e. Hotel Basar Residency, Tibet Road, Gangtok located nearby Sadar RS. seized the bounced cheques, Banks statements, letter of agreement in between the parties and memorandum as case exhibits. Seizure memo dated 11-05-07 prepared in this respect in the presence of independent witnesses is enclosed herewith. The xerox copies of payments made towards electricity, water supply and sewerage bills are also enclosed herewith. Arrested accused Mintu Singha Roy, son of Shri T. K. Singha Roy, examined and released on Court bail. Examined other witnesses acquinted with facts and circumstances of the instance case. Investigation revealed that there was contractual agreement of lease of Hotel Basar Residency located at Tibet Road Gangtok in between Mrs. Tshering Dolkar, the building owner and accused person. The agreement was held on 01-09-2004, initially for the period of 3 years. The lease property consisted of 2nd. 3rd and 4th floor of the said building. The contractual agreement was renewed on 01-09-2005 wherein the 5th floor of the said building was also added. The agreement was made for the period of 3 years with effect from 01-09-2005 to 31-08-2007. The lease documents provided during the course of investigation however do not outlined the lease amount. 3rd and 4th floor of the said building. The contractual agreement was renewed on 01-09-2005 wherein the 5th floor of the said building was also added. The agreement was made for the period of 3 years with effect from 01-09-2005 to 31-08-2007. The lease documents provided during the course of investigation however do not outlined the lease amount. In lease agreement undergone on 01-09-2005 contains a clause wherein it is mentioned that the leasee has every right to surrender the lease before the expiry of the agreement period giving 6th month notice in advance failing which the lease will have to pay an amount of Rs. 3,00,000 (Three Lakhs) only. The Hotel Basar Residency is basically a commercial establishment (lodge) registered in the name of Shri. Tenzing Yarphel son of Mrs. Tshering Dolkar. Mrs. Tshering Dolkar who happened to be the owner of the building is also a care taker of Hotel Basar Residency as Shri. Tenzing Yaiphel mostly used to stay out of Sikkim. Mrs. Tshering Dolkar, in a capacity of care taker of the said Hotel had given the premises as mentioned above on lease to accused person in following manner :- Sr. No. PERIOD OF LEASE RENT AMOUNT 1) 01-09-2004 - 31-08-2005 Rs. 8,50.000/-(2nd, 3rd and 4th floor) 2) 01-09-2005-31-08-2006 Rs. 11,50,000/-(2nd, 3rd, 4th and 5th floor) (The period of agreement was last extended on 01-09-2005 in between Smt. Tshering Dolkar, the care taker and the accused person for another 3 years.) 3) 01-09-2006-31-08-2007 Rs. 11,50,000/-(2nd, 3rd, 4th and 5th floor) (Plus 10% annual increase in the rent) = Rs. 12,65.000/- As mentioned in the FIR the accused person had failed to pay the rent as under 1) Unpaid rent till 31st of September, 2006 Rs. 75,000/- 2) Unpaid rent for 01-09-2006 Rs. 12,65,000/-31st-08-2007 Total Rs. 13,40,000/- The total rent for the period 01-09-2004 to 31-08-2005; 01-09-2005 to 31-08-2006 and 01-09-2006 to 31-08-2007 payable by the accused person amounts to Rs. 32,65,000/- (Thirty Lakhs Sixty Five Thousand) only. The accused person is learnt to have made the payment of Rs. 22.35.000/- (Twenty Two Lakhs Thirty Five Thousand) only towards rent and Rs. 1.82.946/- (One Lakh Eighty Two Thousand and Nine Hundred Fourty six) only and Rs. 17.930/- (Seventeen Thousand Nine Hundred Thirty) only towards electricity bills and water supply sanitation bills respectively. The accused person is learnt to have made the payment of Rs. 22.35.000/- (Twenty Two Lakhs Thirty Five Thousand) only towards rent and Rs. 1.82.946/- (One Lakh Eighty Two Thousand and Nine Hundred Fourty six) only and Rs. 17.930/- (Seventeen Thousand Nine Hundred Thirty) only towards electricity bills and water supply sanitation bills respectively. During the period of transaction the accused person had made payments of rent through cheques as under - 1) Cheque number 454870 Dated 28-09-2004 Rs. 2,00,000/- 2) Cheque number 139467 Dated 07-01-2006 Rs. 2,00,000/- 3) Cheque number 454871 Dated 30-09-2004 Rs. 2,00,000/- 4) Cheque number 636951 Dated 24-01-2007 Rs. 2,00,000/- 5) Cheque number 139468 Dated 15-01-2006 Rs. 1,00,000/- 6) Cheque number 101632 Dated 27-09-2004 Rs. 2,00,000/- 7) Cheque number 073632 Dated 01-02-2005 Rs. 50,000/- 8) Cheque number 39466 Dated 31 -12-2005 Rs. 2,00,000/- The accused person is learnt to have made payment to Smt. Tshering Dolkar. the care taker of the Hotel as mentioned above which amount to Rs. 13.50.000/- (Thirteen Lakhs Fifty Thousand) only in between 28-09-2004 to 24-01-2007 but one cheque bearing number 636951 dated 24-01-07 was bounced due to insufficient fund in the account of accused person and hence remained unpaid. However accused had paid Rs. 1.00.000/- (One lakh) only in cash instead of paying Rs. 2.00.000/-(Two Lakhs) only against the bounced cheque. Further it has learnt that accused person had paid in cash bearing cheque serial Nos. 1. 2. 3. 5. 6. 7 and 8 which were reportedly bounced. However, on investigation only one Cheque No. 636951. Dated : 24-01-07 was found bounced. On the other hand Smt. Tshering Dolkar. the care taker had shown receipt of Rs.14.73.205 (Fourteen Lakhs Seventy Three Thousand Two Hundred and Five) only in lieu of money received from accused person from 16-11-2004 to 12-03-2007. Whereas amount shown received vide UTI cheue No. 008820 dated 03-12-2004 is not mentioned. The accused person is said to have left Hotel Basar Residency in between 10-15th of August, 2006 without informing the care taker or the real owner of the commercial establishment in violation to contractual agreement that had undergone in between them. In the absence of the accused person Smt. Tshering Dolkar the care taker of the Hotel Basar Residency is learnt to have engaged Mr. Sanjeev Kumar Rai son of Mr. In the absence of the accused person Smt. Tshering Dolkar the care taker of the Hotel Basar Residency is learnt to have engaged Mr. Sanjeev Kumar Rai son of Mr. Nor Singh Rai, r/o Timi Tarku Bazar South Sikkim as Hotel Manager for a period of one month w.e.f. 17-05-2007 to 18-06-2007. The accused Montu Singha Roy went untraced but on 31-12-2006 he had sent a fax letter to Smt. Tshering Dolkar. assuring her to pay the rent for the period of October 2006 to 20-06-2007 and to restart the Hotel business. The copy of the fax letter enclosed herewith. Smt. Tshering Dolkar the care taker of the Hotel Basar Residency provided duplicate copy of money receipt and Xerox copy of the original lease deed and provided the original register containing the record of the money received ffom the accused person. In view of the above facts and circumstances it is made Out the accused Mintu Singha Roy who was entrusted with the property as per contractual agreement committed breach of trust by not paying the rent and cheated the complainant by way of providing a bounced cheque of State Bank of India at one instance bearing serial No. 636951, dated 24-01-2007 amounting Rs. .2,00,000/- (Two Lakhs) only while making the payment of rent with the intention to commit fraud and owed ,an ; outstanding amount of Rs. 13,40,000/- (Thirteen Lakhs Fourty Thousand) only and cheated the party. Hence; the accused Mihtu Singha Roy is liable under Ss. 409, 420, IPC and submitted charge-sheet against him for necessary trial in the Court of law..........................." [9] Upon consideration of all these, there is no manner of doubt that when the lease agreement was initially entered into between the parties, the element of deceit did not exist which can be inferred from the subsequent action of the parties, i.e. of the petitioner having made the payment and the respondent No. 1 having received them. The principal allegations contained in the FIR forming the basis of the offences committed by the petitioner are that (i) a cheque by which a payment was made had bounced and, therefore, cheated the complainant and that (ii) all efforts to contact the petitioner had been in vain and, therefore, believed that the complainant had been defaulted by Shri Mintu Singha Roy by absconding with the complainant's money. These, in my view, do not satisfy the ingredients of Section 420, IPC. In fact, the FIR discloses that the only grievance of the petitioner was the fact of the respondent No. 1 having defaulted in payment of his dues against the agreed annual rent prescribed in the lease agreement. The charge-sheet, the relevant portions of which have been extracted above, discloses that there were series of payments made by cheque by the respondent No. 1 to the petitioner between 28-09-2004 to 31-12-2005 which dispels the charge of the respondent No. 1 having cheated the petitioner by dishonestly inducing her to deliver the property in question. The intention of the accused at the time he requested for the property being let out on lease to him can be gathered from his subsequent conduct. The factum of payments made by him as revealed from the investigation negatives any deceitful intention on his part at the stage preceding the delivery of the property to him. Even as regards the cheque for an amount of 2 lakhs that bounced is concerned, the charge-sheet reveals that it was later condoned, as apparently 50% of the amount, i.e. that is 1 lakh, was paid by the petitioner and received and accepted by the respondent No. 1. Under such circumstances, it is difficult for this Court to accept that the ingredient as required under Section 420, IPC has been satisfied. The other offence under Section 409, IPC charged against the petitioner also cannot be said to have been attracted from the bare reading of the provision itself. We may reproduce Section 409, IPC for convenience :- "409. Criminal breach of trust by public servant, or by banker, merchant or agent.-Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Admittedly, the respondent No. 1 is neither a public servant nor a banker, merchant, factor, broker, attorney or agent. [10] Considering the entire facts and circumstances, I see no reason why the present proceedings should not be quashed as it would amount to a travesty of justice being quite frivolous and untenable in law. [11] In the result, the petition is allowed and accordingly the G.R. Case pending before the learned Judicial Magistrate at Gangtok being No. 94 of 2008 dated 11th May, 2007, stands hereby quashed. [12] No order as to costs. [13] Let a copy of this Order be transmitted to the learned Judicial Magistrate, East Sikkim at Gangtok, for its due compliance. Petition allowed.