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2019 DIGILAW 105 (UTT)

Amit Pal v. State of Uttarakhand

2019-02-20

LOK PAL SINGH

body2019
JUDGMENT : By means of present application under Section 482 Cr.P.C., the applicants seek to quash the summoning order dated 26.11.2009, passed by learned Judicial Magistrate (CBI) Dehradun, in criminal case no. 1744-A of 2009, State vs Amit Pal and another, under Sections 420 of IPC, as also the charge sheet dated 22.03.2009 along with the consequential proceedings of aforesaid criminal case pending in the selfsame court. 2. A complaint was lodged by the complainant/respondent no. 2 against the applicants with P.S. Raipur, District Dehradun which was registered under orders of the Magistrate under Section 156(3) of Cr.P.C., stating therein that the complainant is proprietor of the firm namely M/s ATCALL and is engaged in the work of I.T. solutions and call center. In the month of June 2007, applicants came to the complainant and lured him to do business with them. Applicant no. 1 and 2 claimed themselves to be the partners of firm M/s Seven communication and told the complainant that if both the firms work together it will be beneficial for both the firms. On this assurance, complainant got agreed to work with the applicants and when he asked the applicants to execute the agreement they gave him a slip on one pretext or another. The applicants spent lacks of rupees after taking the same from the complainant and purchased computer equipments worth lacs of rupees in his name. When the complainant asked as to who will pay the bill, the applicants told him that they will return the money to the complainant. On said assurance, the complainant paid lacks of rupees to them for purchase of computer equipments. Apart from this, the applicants also employed some employees at Dehradun centre. Even the cheques given by the applicants to these employees in lieu of salary also got dishonored and the monthly salary for the last many months was paid by the complainant himself. In all, the applicants duped the complainant an amount of Rs. 65 lacs. Thereafter the complainant realized that the applicants after hatching conspiracy caused financial loss to him and that from the very beginning the intention of the applicants was to cheat the complainant. The said complaint was registered under orders of the Magistrate under Section 156(3) of Cr.P.C. as case crime no. 1744-A of 2009, with P.S. Raipur, District Dehradun, under Section 420 of IPC against the applicants. The said complaint was registered under orders of the Magistrate under Section 156(3) of Cr.P.C. as case crime no. 1744-A of 2009, with P.S. Raipur, District Dehradun, under Section 420 of IPC against the applicants. After completion of investigation, charge sheet was submitted against the applicants for the selfsame offence. Learned Magistrate vide order dated 26.11.2009 took cognizance against the applicants and summoned them to face the trial in respect of offence punishable under Section 420 of IPC. 3. Learned counsel for the applicants would submit that applicants are the partners of M/S seven communication, ES-12, Civil Lines Jalandhar, Punjab. They had taken two premises on rent from Mr. Harish Marwah, father of the complainant, and had been running a quality control center at 18 New Road, Dehradun and also at the campus known as ‘Marwah & Company’, Raipur Road, Adhoaiwala, Dehradun. Learned counsel for the applicants would further submit that it was the complainant himself, who obtained the work from M/s Seven Communications and offered to invest the money. The applicants agreed to run the business on the basis of commission from the complainant. The applicants belong to Jalandhar, Punjab and, as such, it was not possible for them to personally manage and control the said centers at Dehradun. The complainant, who is son of landlord Mr. Harish Marwah and is Proprietor of M/s ATCALL, offered to manage and supervise the said centers on behalf of the applicants during their absence and the applicants accepted such offer on oral arrangement. The applicants employed a number of workers to execute the job work at the said centers. The applicants used to send a number of blank, undated, signed cheques to the complainant in good faith for payment of the salary to the staff employed by the applicants at the said centers and also towards payment of rent of said premises. The applicants invested a huge amount in the aforesaid business, but the complainant, who was looking after the work did not pay any commission amount to the applicants. In fact, it was the complainant, who played fraud upon the applicants. 4. The applicants after coming to know of the fraud committed by the complainant send a complaint through registered post to the Senior Superintendent of police, Dehradun on 18.07.2008, narrating therein the correct facts. In fact, it was the complainant, who played fraud upon the applicants. 4. The applicants after coming to know of the fraud committed by the complainant send a complaint through registered post to the Senior Superintendent of police, Dehradun on 18.07.2008, narrating therein the correct facts. The earlier application moved by the complainant under Section 156(3) of Cr.P.C. before the Judicial Magistrate (C.B.I) Dehradun was rejected by the Magistrate vide order dated 24.12.2008. Against the order dated 24.12.2008, the complainant filed a Criminal Revision No. 02 of 2009, Unnat Marwah Vs. State of Uttarakhand and others, which was allowed by learned Sessions Judge, Dehradun vide order dated 03.02.2009, thereafter, the learned Magistrate directed the police to registered an F.I.R. and investigate the matter against the applicants. The said FIR was registered as case crime no. 50 of 2009, under Section 420 of I.P.C. After completion of investigation, chargesheet dated 22.03.2009 was submitted against the applicants. 5. Per contra, learned counsel for the complainant/respondent no. 2 would submit that the applicants have not approached the court with clean hands. They have suppressed the fact that earlier an FIR bearing no. No. 338 of 2008 was registered against them at District Amritsar, Punjab under Section 420, 120B of IPC. Another case bearing no. 510 of 2009, under Section 138 of Negotiable Instruments Act is also pending against them in the Court of Dehradun. The contention of the applicants that they had taken two premises on rent from the father of the complainant for extension of their business was complete eyewash to win the confidence of the complainant. In fact, it was a part of their modus operandi. The work they undertook was never concluded. To the contrary, the applicants using the goodwill and name of the complainant and his family have not only cheated the complainant but other persons also. It is also argued that it is wrong to say that the applicants used to send no. of blank, undated, signed cheques to the complainant in good faith for payment of salary to the staff employed and also towards payment of rent of said premises. In fact, the applicants opened the said centers under the supervision of one Monik Sharma and themselves employed a number of workers to execute the work at the said centers. of blank, undated, signed cheques to the complainant in good faith for payment of salary to the staff employed and also towards payment of rent of said premises. In fact, the applicants opened the said centers under the supervision of one Monik Sharma and themselves employed a number of workers to execute the work at the said centers. The applicants left the place without making payment to the persons employed and the complainant being a local resident had to settle the outstanding dues of the creditors. Thus, it is amply clear that the applicants in order to cheat the complainant played fraud upon him by misappropriating the funds. The averments made in the writ petition were made to get rid of the liability of Rs. 65 lacs in respect of which the applicants had issued the said cheques and regarding which a case under Section 138 of Negotiable Instruments Act is also pending against them in the court at Dehradun. 6. Learned counsel for the applicants placed reliance upon a judgment rendered by Hon’ble Apex Court in International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) vs Nimra Cerglass Technics Private Ltd., (2016) 1 SCC 348 and on the strength of said judgment it is argued that in order to bring a case for offence of cheating, it is not merely sufficient to prove that a false representation was made, but it is further necessary to prove that the representation was false to the knowledge of accused and was made in order to deceive complainant. It is further submitted that from the averments made in the complaint, essential ingredients of dishonest intention are not made out, as such, the criminal proceedings against the applicants are liable to be quashed. 7. The facts of the judgment (supra) are different from the facts of the present case. In the judgment (supra) the appellants were officers, Associate Director and Director of ARCI, who claimed that they are in possession of technology for manufacturing of extruded ceramic honeycombs used in manufacturing of catalytic converters, which again are used in automobiles for controlling emission. On said assurance, the respondent entered into technology transfer agreement with ARCI, for which the respondent paid rupees ten lacs in installments and also installed the comprehensive machinery spending around rupees one crore thirty lacs. On said assurance, the respondent entered into technology transfer agreement with ARCI, for which the respondent paid rupees ten lacs in installments and also installed the comprehensive machinery spending around rupees one crore thirty lacs. Later it was found that scientists working in ARCI have not perfected the honeycomb technology sufficient for commencing commercial production and by their false representations induced the respondent to spend huge amount and thus the appellants have committed an offence of cheating. Hon’ble Apex Court in the judgment (supra) has held that from the averments made in the complaint, essential ingredients of dishonest intention are not made out against the appellants and quashed the criminal proceedings initiated against them. 8. Hon’ble Apex Court in Mridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr., (2000) 4 SCC 168 has held that the distinction between mere breach of contract and cheating, which is a criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the instant case, there were allegations of fraudulent and dishonest intention including allegations of cheating, the correctness or otherwise whereof can be determined only during trial when evidence is adduced. 9. In Vesa Holdings (P) Ltd. and Anr. v. State of Kerala and Ors., (2015) 8 SCC 293 Hon’ble Supreme Court has observed thus: “12. The settled proposition of law is 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.” 13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not.” 10. The necessary ingredients for the offence punishable under Section 420 IPC are that there should be a deception from the very inception for the purposes of cheating. The intention of cheating and deception has to be seen for continuing criminal proceedings under the provisions of Section 420 IPC. The necessary ingredients for the offence punishable under Section 420 IPC are that there should be a deception from the very inception for the purposes of cheating. The intention of cheating and deception has to be seen for continuing criminal proceedings under the provisions of Section 420 IPC. There cannot be a straight jacket formula to ascertain that a complainant has to be aware that there is a deception and intention of cheating on the part of the accused person from the very inception. If the same would have been in the knowledge of the complainant, he might have saved himself from being cheated. Thus, normally it comes to the knowledge of the complainant later on that he has been cheated by the accused person by deception. A perusal of the averments of the complaint would reveal that the ingredients for the offence punishable under Section 420 IPC, prima facie, are made. The Learned Magistrate after perusal of the complaint and the material called for by him has taken the cognizance against the applicants under Section 420 IPC and summoned them to face the trial. 11. It is settled position in law that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons. 12. Their Lordships of the Hon’ble Supreme Court in the case of Sonu Gupta vs Deepak Gupta and others, (2015) 3 SCC 424 have held that prima facie satisfaction of the Magistrate concerned is sufficient for summoning the accused. The relevant paragraphs of said judgment are excerpted here-in-below: “7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accuse persons before the courts below or in this Court lest it prejudices one or the other party in future. 8. 8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.” 13. Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986 has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists. 14. Since, prima facie case is made out against the applicants, the learned Magistrate after perusal of the complaint and the material placed before him, has rightly taken cognizance and summoned the applicants to face the trial in respect of the offence punishable under Section 420 IPC. 14. Since, prima facie case is made out against the applicants, the learned Magistrate after perusal of the complaint and the material placed before him, has rightly taken cognizance and summoned the applicants to face the trial in respect of the offence punishable under Section 420 IPC. I do not find any illegality, perversity or jurisdiction error in the orders under challenge, as such, the same needs no interference at this stage. 15. In view of the findings recorded above, criminal misc. application filed under Section 482 of Cr.P.C. fails and is hereby dismissed.