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2018 DIGILAW 765 (ORI)

Om Shakti Group v. State Of Orissa

2018-08-28

S.K.SAHOO

body2018
JUDGMENT S.K. Sahoo, J. - Heard Mr. H.N. Mohapatra, learned counsel for the petitioner and Mr. Prasanjeet Mohapatra, learned Addl. Standing Counsel for the State. 2. This is application under section 482 of Cr.P.C., 1973 filed by the petitioner M/s. OM Shakti Group challenging the impugned order dated 16.01.2013 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No. 3064 of 2012 in taking cognizance of the offence under section 420 of the Indian Penal Code. 3. On reading of complaint petition, it appears that there was an agreement between the petitioner and opposite party no.2 M/s. Maruti Distributor. The terms and conditions of the agreement which are quoted in the complaint petition as follows:- "4. That as per the agreement, the complainant paid a sum of Rs. 4,00,000/- (Rupees four lakhs only) i.e. Rs. 1,00,000/- (Rupees one lakh) on 28.09.2011, Rs. 1,00,000/- (Rupees one lakh only) on 21.10.2011/- and Rs. 2,00,000/- (Rupees Two Lakh only) on 08.11.2011 to the accused and the accused likewise dispatched the goods in two bills vide Bill No. 043 dated 10.11.2011 amounting to Rs. 2,83,105.82 (Rupees two lakhs eight three thousand one hundred and five and paisa eighty two only) and Bill No. 044 dated 10.11.2011 amounting to Rs. 1,22,301.29 (Rupees one lakh twenty two thousand three hundred and one and paisa twenty nine only). But during the verification of the said goods, it was ascertained that there was short fall of goods and was not upto the mark as per the verbal discussion. The goods supplied were also damaged due to transportation. xx xx xx 7. That the accused persons failed to comply the conditions of clause 11 of the agreement wherein it has been mentioned that the accused will replace, if there is any manufacturing defect or damages in transit but in spite of the intimation given to the accused about the damaged goods and the shortage of the goods delivered, the accused has not taken any steps till date". 4. Learned counsel for the petitioner contended that when there is specific agreement between the parties, even if there is allegation of short fall of goods or that some of the goods were not upto the mark or damaged during transportation, it would ipso facto not attract the ingredients of offence under section 420 of the Indian Penal Code. 5. 4. Learned counsel for the petitioner contended that when there is specific agreement between the parties, even if there is allegation of short fall of goods or that some of the goods were not upto the mark or damaged during transportation, it would ipso facto not attract the ingredients of offence under section 420 of the Indian Penal Code. 5. In spite of sufficiency of service of notice on opposite party no.2, nobody appears on its behalf. 6. Learned counsel for the State assisted this Court and placed the complaint petition, initial statements of the complainant and so also the statements of the witnesses recorded under section 202 of Cr.P.C., 1973 7. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420 of the Indian Penal Code, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). (Ref:- Md. Ibrahim v. State of Bihar reported in (2009) 8 Supreme Court Cases 751 ). 8. In view of the aforesaid proposition of law, I am of the view that it cannot be said that the representation which was made by the petitioner to the opposite party no. 2 was false to the knowledge of the petitioner and it was made in order to deceive the opposite party no. 2. There is nothing on record to show that the intention of the petitioner was dishonest at the very time when he made the promise and executed the agreement. 2 was false to the knowledge of the petitioner and it was made in order to deceive the opposite party no. 2. There is nothing on record to show that the intention of the petitioner was dishonest at the very time when he made the promise and executed the agreement. Merely because there is a breach of part of the contract, would not ipso facto attract the ingredients of offence under section 420 of the Indian Penal Code and therefore, invoking my inherent powers under section 482 Cr.P.C., 1973 and to prevent the abuse of process, I am inclined to accept the prayer made by the petitioner and set aside the impugned order dated 16.01.2013 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case no.3064 of 2012. Accordingly, the CRLMC application is allowed. Urgent certified copy of this order be granted on proper application.