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2015 DIGILAW 1175 (RAJ)

Shanti Devi v. State of Rajasthan

2015-06-09

RAGHUVENDRA S.RATHORE

body2015
JUDGMENT : Raghuvendra S. Rathore, J. The case of the prosecution against the accused petitioner is that the complainant Rajesh Rathi had lodged a report at police station Brahmpuri, Jaipur that he is doing the business in cloths and shoes. The office for this purpose had been opened by the complainant in a plot at Ramgarh Mod. Jaipur. On 30.11.2014, the accused went to the office of the complainant and expressed her desire to purchase shoes. In consideration of the goods purchased, worth Rs.1,05,000/-, she had given two cheques no. 000102 dated 01.01.2015 of Bank of Baroda and 000101 dated 24.12.2014 also of Bank of Baroda Branch Ramganj, Ajmer. When the said cheques were o presented to the Bank for payment, the same were dishonored. On the said report, a criminal case for the offences under sections 406, 420, 504, and 120 - B IPC was registered against the accused and the investigation commenced. 2. It has been argued by the counsel for the petitioner that there was business transaction between the parties. The aforesaid cheques had been issued by the accused in respect of payment of goods. The cheques which were issued to the complainant had not been returned by him even when a notice was issued by the accused to the complainant, through his counsel. 3. Learned public prosecutor has opposed the bail application and submitted that the instant case is not a one which has given rise to the civil liability but that of criminal liability, as the accused since the beginning had 1 never intended to pay the amount for the goods purchased by him. 4. After hearing the learned counsels for the parties, the court has carefully perused the material on record, including the first information report. 5. It is to be noted that against the present accused one another criminal case of similar nature, in respect of issuance of the cheque the 1 amount of which was never paid, had also been registered. At that time, the court had considered it to be a usual case of dispute of civil nature and the accused was considered to be entitled for grant of relief of bail. At that time, the court had considered it to be a usual case of dispute of civil nature and the accused was considered to be entitled for grant of relief of bail. But now on account of repetition of similar offence which appears to have been the modus operandi of the accused petitioner while taking away the goods that this court had thoroughly looked into the facts and circumstances of the case; purchase of goods by the accused for which he did not intend the pay the price and the cheques given at the time of taking the goods which were never to be encashed for paying the consideration to complaint. 6. A transaction may give rise to civil or a criminal liability. In a given case the dividing line between the two liabilities may be very thin but the distinction is real and cannot be ignored. 7. Mens rea precedes the act. When the act is coupled with the pre - existing mens rea, a crime is properly constituted. Where there is no pre - existing mens rea and there is subsequent inability to perform the promise, only civil liability is incurred. A distinction must be drawn between a case where a post - dated cheque is given to discharge the existing liability and a case where it is issued against delivery of goods, property or cash with an assurance implied or otherwise that it will be met on being presented to the bank on the due date and in due course. In the first case the failure to ' provide the balance is merely a breach of promise whereas in the later it may have different consequences. It is the intention of the drawer at the time when the cheque is issued which constitutes the material test and if it appears from the circumstances of the drawer that he did not expect that the cheque would be cashed in normal 1 course, it would be prima facie proof of the intention to cheat as is clear from Illustration (f) to Section 415 of the IPC which is as under: "A intentionally deceives into a belief that A means to repay any money that may lend to him and thereby dishonestly induces to lend him money. A not intending to repay it. A cheats." 8. A not intending to repay it. A cheats." 8. A plain reading of the language of the illustration is that what is material is the intention of the drawer at the time the cheque is issued and the intention has to be gathered from the facts on record, if from the circumstances it is established that failure to meet the cheque was not accidental but a consequence expected by the accused, the presumption would be that the accused intended to cheat. 9. No doubt the drawing up of a cheque does not imply any representation that the drawer has money in the Bank to the amount shown in the cheque, for he may either have authority to over - draw or have an honest intention of paying the necessary money before the cheque can be presented. In this context a post - dated cheque is a mere promise to pay on a future date and the mere fact that the cheque is dishonoured may not in itself give rise to a criminal offence. In such a case there is an implied representation that (i) the cheque is a good and valid order for payment of the amount; and (ii) that the cheque would be paid when presented for payment. 10. The direct proof of mens rea is seldom available and it has often to be inferred from the surrounding circumstances. The prosecution establishes facts which lead prima-facie to the conclusion that failure to meet the cheque was not accidental but was consequence expected and, therefore, intended by the accused. It will then be for the accused to establish any fact which may be in his favour and was specially within his knowledge and of which the prosecution could not be expected to have any information. 11. Relating to the offence of cheating punishable under section 420 IPC, it has been stated in the case of S.L. Savani (1988) I MPWN 42 as under Legislative definition of the offence of cheating as embodied in Section 415, I.PC. though not so vide as moralists would like it to be, is none - the - less wide enough to bring within its coverage a large section of the wrong - doers. It may be noted that the definition of cheating consists of two parts - each independent of the other. First part pertains to delivery or retention of property. though not so vide as moralists would like it to be, is none - the - less wide enough to bring within its coverage a large section of the wrong - doers. It may be noted that the definition of cheating consists of two parts - each independent of the other. First part pertains to delivery or retention of property. In order to establish the offence of cheating as contemplated under the second part it has to be shown that not only that person deceived was induced to do or not to do something but this act or omission on his part caused or is likely to cause damage or harm in body, mind, reputation or property which are presumed to be the four cardinal assets of humanity. A transaction may give rise only to civil liability or to criminal assets of humanist. A transaction may give rise only to civil liability or to criminal liability or to both. It may be noted that Section 415, I.P.C. does not in any manner limit the mode in which deception may take place or is it necessary that the deception should be by express words. It may be by conduct or implied in nature of the transaction itself. 12. In view of the settled principles of law and the facts and circumstances of the present case where the accused purchased the goods (shoes) and at the same time gave cheques for payment which were never encashed, that the intention of the accused is very much clear and commission of the crime is constituted. Therefore, the submissions made by the counsel for the petitioner that no criminal offence is made out, cannot be sustained. Consequently, the bail application has no merit and is, accordingly, dismissed. Bail Application Dismissed.