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2018 DIGILAW 743 (ALL)

LALIT KARGETI v. STATE OF U. P.

2018-03-29

AMAR SINGH CHAUHAN

body2018
JUDGMENT : Hon'ble Amar Singh Chauhan,J. Shri Hemendra Pratap Singh, learned counsel for the applicant, learned A.G.A. for the State and Shri V.K. Sharma, learned counsel for the opposite party nos. 2 and 3 are present. 2. Heard and perused the material on record. 3. The applicant Lalit Kargeti, through this application moved under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the entire proceedings of Complaint Case No. 3949/05 (Kishan Chandra and another Vs. Lalit Kargeti), under Section 406, 420 I.P.C., P.S. Ramgarh, District Firozabad, pending in the court of A.C.J.M.-I, Firozabad. 4. The brief facts which are requisite for the adjudication of the application are that on 27.8.2004, opposite party no. 2 has placed an order for purchase of Automatic Hydrolic Rim Straightening Machine and one Pneumatic Electrical Tyre Changer and in view of the aforesaid demand, machines were transported to the workshop of the opposite party. The opposite party raised an allegation in the complaint that the said machine has not been functioning properly and not transported in view of the quotation dated 20.8.2004 along with Demand Draft No. 670719 for Rs. 75,000/-. The applicant who is the proprietor of the Unimach Auto Engineering Equipment Pvt. Ltd. fraudulently did not sent the original machine. After recording the statement under Sections 200 and 202 Cr.P.C. and on being satisfied, the summoning order was issued. 5. Feeling aggrieved, the applicant came up before this court in this application. 6. It is submitted by learned counsel for the applicant that opposite party no. 2 who is the partner of Venus Automobiles, Near Kotla Chungi, Firozabad approached applicant and sought quotation for purchase of machines from him. The opposite party no. 2 placed an order for purchase of one Automatic Hydrolic Rim Straightening Machine and one Pneumatic Electrical Tyre Changer. The said machine was transported to the opposite party no. 2 and duly installed but after three months with malafide intention, the said machine was sent back. The applicant has not only supplied the best machines, but also replaced the same on the request of the opposite party no. 2 as to retain and maintain good and healthy business relations with him, but the opposite party no. 2 after using the machines for his own gain started claiming the amount of the said machines. The applicant has not only supplied the best machines, but also replaced the same on the request of the opposite party no. 2 as to retain and maintain good and healthy business relations with him, but the opposite party no. 2 after using the machines for his own gain started claiming the amount of the said machines. The said machines which have been running in perfect conditions and having been utilized by opposite party no. 2 for his business purpose could not be exchanged several times. Rather the applicant who has incurred expenses on account of replacing and re-installing the machines again and again and further more has suffered mental agony and tension. It is further submitted that when the opposite party no. 2 tried to digest the money of the applicant then the applicant on 17.5.2005 has sent a legal notice to the opposite party no. 2 with a prayer to call upon him to withdraw his letter dated 3.5.2005 and all the allegations made therein against the applicant and also to sent a letter of apology within seven days on receipt of this notice failing which the applicant shall be entitled to the claim of Rs. 1 lac as compensation/damages. The opposite party no. 2 on 27.5.2009 replied the notice in a very arbitrary manner. The opposite party no. 2 just to harass the applicant and fulfil his evil desire, filed a complaint at District Firozabad on 14.10.2005 with a vague allegation that the applicant has cheated him. It is also submitted that the matter is purely of civil nature as is there any breach of contract, the parties may approch before the civil court for proper relief and the prosecution is nothing but an abuse of process of the law. 7. It is also submitted that the matter is purely of civil nature as is there any breach of contract, the parties may approch before the civil court for proper relief and the prosecution is nothing but an abuse of process of the law. 7. The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 , and observed as follows: "The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontraverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection". 8. In the instant case, the opposite party approach the applicant and sought quotation for purchase of the machines and placed order for purchase of one Automatic Hydrolic Rim Straightening Machine and one Pneumatic Electrical Tyre Changer and in view of the aforesaid demand, machines were sent to the workshop of the opposite party and duly installed. After the period of two months, defect was pointed out which was removed by replacing the said machine by the applicant. The applicant has not only supplied the machines but replaced the same on the request of the opposite party to maintain good and healthy relationship with him but the opposite party no. 2 after using the machine for own gain started claiming the amount of the said machine, filed a complaint. 9. Before adverting to the claim of the parties, it is necessary to reproduce Section 415 I.P.C. which is stated as under:- "415. Cheating. 2 after using the machine for own gain started claiming the amount of the said machine, filed a complaint. 9. Before adverting to the claim of the parties, it is necessary to reproduce Section 415 I.P.C. which is stated 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. Explanation. A dishonest concealment of facts is a deception within the meaning of this section. Section 415 IPC thus requires: 1. deception of any person. 2. (a) fraudulently or dishonestly inducing that person- (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person 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." 10. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning. If the promise is not fulfiled by the applicant, the same can be enforced before the civil court. The allegation is not substantiated by the evidence forming prima facie case against the applicants. 11. The Hon'ble Apex Court in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others [ AIR 2008 SC 251 ], has held that to hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making promise. From mere failure to keep promise, one cannot presume that he all along had a culpable intention to break the promise from the very beginning and the dispute in question is of purely civil in nature and the initiation of any criminal proceedings by the respondents against the applicant is clearly an abuse of process of the court. 12. The Hon'ble Apex Court in the case of Vimla (Dr.) Vs. Delhi Administration [ AIR 1963 SC 1572 ] has explained the meaning of the expression "defraud" thus: "14..... the expression 'defraud' involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied." 13. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied." 13. The Hon'ble Apex Court in the case of Ram Biraji Devi and another Versus Umesh Kumar Singh and another, [2006 (55) ACC 560], in which it has been observed that "there was a dispute in respect of sale and purchase of land between the parties. In our view even if the allegations made in the complaint are accepted to be true and correct, the appellants cannot be said to have committed any offence of cheating or criminal breach of trust. Neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No criminal case is made out by the complainant against the appellants in his complaint and in the statements of the complainant and his witnesses recorded by the Magistrate before taking of the cognizance of the alleged offences. The averments of the complaint and the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and no criminal liability can be attributed to the appellants on the basis of the material on record. 14. In view of what have been discussed above, the prosecution is nothing but an abuse of process of law. The application has substance and is liable to be allowed. 15. The application is allowed and the proceeding of Complaint Case No. 3949/05 (Kishan Chandra and another Vs. Lalit Kargeti), under Section 406, 420 I.P.C., P.S. Ramgarh, District Firozabad, pending in the court of A.C.J.M.-I, Firozabad is hereby quashed.