Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 215 (CAL)

Jigar Shah v. State of West Bengal

2016-02-29

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. This is an application under Section 482 of the Code of Criminal Procedure, wherein the petitioner has prayed for quashing of the F.I.R. on the ground that the evidence collected during investigation does not constitute any offence. He categorically stated that there was a mercantile transaction between the parties for a long time and the present petitioner accused company used to carry on business of selling various types of Self Adhesive Tapes, Plastic Rolls and bags and they used to supply the same to them. There was mercantile transactions for years together. Since 2008 the business transaction was going on and pursuant to their discussion the complainant supplied goods to the petitioner accused company. Payment was to be made in terms of the oral agreement, but accused company always give assurance to them but actually did not pay. In the meantime, the dues became about Rs. 22,23,005/-. 2. Several reminders were sent by the complainant to the present petitioners but to no good. According to the complainant, the present accused Nos. 2 and 3 deliberately and fraudulently kept giving false assurance with the oblique motive of delaying disbursement of the legitimate dues. The complainant further added that believing such inducements and fraudulent representations, he has supplied the goods to the accused company. 3. Challenging the contention of the F.I.R., the accused petitioner submitted that there is no element of mens rea, no element of intention to cheat or there is any type of fraudulent act. So according to them, the F.I.R. should be quashed. 4. Learned Counsel appearing on behalf of the petitioner has relied on the decision reported in (2003) SCC (Cri) 703, (Ajay Mitra v. State of M.P. & Ors.). While delivering the judgment, the Hon'ble Apex Court held 'a guilty intention is an essential ingredient of the offence of cheating. In other words "mens rea" on the part of the accused must be established before he can be convicted of an offence of cheating. In order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. Unless the complaint speaks that the accused had dishonest or fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under Section 420 I.P.C. and it may only amount to breach of contract.' 5. Unless the complaint speaks that the accused had dishonest or fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under Section 420 I.P.C. and it may only amount to breach of contract.' 5. Learned Counsel appearing on behalf of the state contended that Section 420 I.P.C. may lie. In the said judgment of the Hon'ble Apex Court, it has been made clear where the charge against the accused is under Section 420 I.P.C. it is to be shown that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but will not pay. If the accused had at that time promised to pay cash against delivery, and the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand, he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods in that case offence of cheating would be established. 6. Learned Counsel appearing on behalf of the petitioner relied on the decision reported in (2005) 10 SCC 336 , (Uma Shankar Gopalika v. State of Bihar & Anr.). In the said judgment, Hon'ble Apex Court has clearly held "now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under Sections 420/120- I.P.C. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs. 4,20,000/-, they would pay a sum of Rs. 2,60,000/- to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to the claim of Rs. 4,20,000/-. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. 4,20,000/-. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 I.P.C." 7. By referring the judgment reported in (2007) 3 SCC (Cri) 370, (Vir Prakash Sharma v. Anil Kumar Agarwal & Anr.), learned Counsel appearing on behalf of the petitioner has submitted that there was no allegation as to act of inducement on the part of the accused and intention to cheat the complainant from the very inception. Since those are lacking in this instant case, so the complaint is liable to be quashed in view of the said judgment. 8. Charge-sheet has been submitted under Section 420 also against the accused petitioner. The ingredients of Section 420 of the Penal Code are (i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. 9. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. 9. Therefore, even if one of the grounds on which such interference is permissible is that the allegation contained in the complaint petition, even if given its face value and taken to be correct in their entirety, commission of offence is not disclosed. In such case High Court may interfere where the actionable part of the complainant is mala fide. 10. It is perhaps needless to say that mens rea is a necessary ingredient with which a breach of trust may not result in criminal breach of trust. In order to constitute an offence punishable under Section 420 I.P.C., the dishonest intention must be shown to exist at the time of making of the inducement. In this instant case, I do not find any such material that there was intention at the time of making of the inducement. It is manifest that the allegation in the case arises out of mercantile transactions in which there was a sale of certain Self Adhesive Tapes on credit with oral stipulation to make payment of the price within a certain specified time. It goes without saying that the transaction as such gives rise to civil dispute between the parties. It was also submitted that to bring home the charge complainant has to show that there exists a fraudulent and dishonest intention at the time of commission of the offence. This Court is not oblivion of the fact that quashing of FIR can only be done in rarest of rare cases. Allegations regarding payment of outstanding dues that too occur in mercantile transactions do not constitute any offence under Section 420/120-B of the Indian Penal Code. On perusal of the FIR, it seems to me that it would constitute a civil liability and in view of that fact that the payment of the dues as claimed by the complainant were made from time to time that cannot be a justification to hold that there was a guilty mind on the part of the petitioners. Failure of a person to keep up promises cannot be presumed as an act relating to cheating. Failure of a person to keep up promises cannot be presumed as an act relating to cheating. Therefore, in my considered view, there is no reason to proceed with the case pending before the learned Court below in connection with the alleged offences under Sections 420, 406, 120-B I.P.C. But on perusal of the complaint under Section 156(3) Cr.P.C. vide Para 17, I find that an offence under Section 506 of I.P.C. is prima facie established. Accordingly, the charge sheet being No. 316 of 2014 dated 24.07.2014 under Sections 420, 406, 120-B I.P.C. in connection with G.R. Case No. 38 of 2014 is quashed. But the accused petitioner shall face the trial under Section 506 of I.P.C. The criminal revisional application is allowed in part. 11. The complainant is at liberty to file appropriate suit before the Civil Court for realisation of money, if so advised. C.R.A.N. No. 4064 of 2015 is also disposed of. 12. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law. Revisional application is partly allowed.