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Rajasthan High Court · body

2023 DIGILAW 615 (RAJ)

Ramniwas, S/o. Sh. Mani Ram v. State

2023-02-27

ASHOK KUMAR JAIN

body2023
ORDER : 1. The present petition under Section 482 Cr.P.C. has been preferred by the petitioner for quashing of proceedings arising out of FIR No.243/2016 registered at the Police Station Taranagar, District Churu for the offences under Section 420 of the IPC. 2. In nutshell, the facts of the case are that complainant-respondent No.2 registered an FIR No.243/2016 at the Police Station Taranagar, District Churu alleging inter alia that petitioner and one Dilip Gurjar, who were indulged in business of sale and purchase of cattle approached him for deal to purchase four buffaloes at a cost of Rs 2.45 lacs from the complainant on the promise that payment of sale consideration would be made by the petitioner within a period of seven days from the date of sale of four buffaloes in Taranagar cattle Fair, organized on every Friday. On said assurance of petitioner and other person, four buffaloes were delivered to petitioner & co-accused. Thereafter, when terms of payment not fulfilled even after several days, the complainant tried to contact the petitioner but after search these individuals were not found and not available on their ordinary place of residence. After registration of FIR at Police Station Taranagar, police after following due procedure as prescribed under Section 299 Cr.P.C. submitted a charge sheet for the offence under Section 420 IPC against the petitioner. 3. Learned counsel for the petitioner would submitted that the facts in FIR itself on face of it indicate that the entire transaction was a civil contract but to create unnecessary pressure and extort money, same was given colour of criminal offence. He would submitted that police or complainant have never tried to contact present petitioner as petitioner is still residing at same address and without following due process, petitioner was declared absconder. He would further submitted that in cases of a business transaction, where payment was allegedly not received by complainant, then the remedy is to file a civil suit for recovery but herein without resorting to remedies available under the law, present respondent-complainant preferred to approach police so as to harass the petitioner. 4. He would further submitted that in cases of a business transaction, where payment was allegedly not received by complainant, then the remedy is to file a civil suit for recovery but herein without resorting to remedies available under the law, present respondent-complainant preferred to approach police so as to harass the petitioner. 4. He would further submitted that normally transactions for sale and purchase of cattle were carried out in cash and if the petitioner would have purchased four buffaloes from complainant-respondent No.2 then at the time of transaction, a cash payment was also made to the complainant by the petitioner, but in present case, this was not considered by the police during investigation. 5. He would further submitted that from statements of Mahesh Kumar and other witnesses recorded under Section 161 Cr.P.C., a fact was established that petitioner was indulged in trading of cattle on cash payment basis. He would further submitted that looking to these statements the image and general reputation of the petitioner in the area can be presumed as good, as enjoyed by other business people. He would further submitted that the petitioner is ready and willing to cooperate in the matter. Lastly, he would prayed that proceedings arising out of the aforesaid FIR may be quashed and set aside. 6. Aforesaid contentions were vehemently and fervently opposed by the learned Public Prosecutor as well as by the learned counsel for the complainant. 7. Learned counsel for the respondent No.2-complainant would submitted that upon a false promise to pay Rs.2.45 lacs within a period of seven days, present petitioner taken the delivery of four buffaloes as same would be sold in Taranagar Cattle fair but the petitioner failed to fulfill his promise. He would further submitted that instead of selling the buffaloes in cattle fair, same were sold somewhere else and the payment so received from the said deal was converted by the petitioner for his personal use thus, petitioner has gained wrongfully on false promise causing wrongful loss to respondent no. 2, itself constitutes an offence of cheating, as defined under section 415 of IPC and breach of trust. 2, itself constitutes an offence of cheating, as defined under section 415 of IPC and breach of trust. He would further submitted that petitioner was asked to join investigation but he failed to do so and after issuance of process under Sections 82 & 83 of the Cr.P.C., the petitioner was already declared as an absconder by the trial Court and no case is made out for quashing of proceedings pending against present petitioner. 8. Heard learned counsel for petitioner as well as learned Public Prosecutor for State and learned counsel for respondent No.2/ complainant. Perused the materials available on record. 9. A report submitted by the SHO, Police Station Taranagar and a copy of charge sheet would indicated that the complainant-respondent No.2 made a specific allegation that on promise to pay Rs.2.45 lacs within a period of seven days from the date of sale of four buffaloes by petitioner in cattle fair, delivery was handed over by him to petitioner. Herein, not a single iota of evidence is available on record to contradict the aforesaid claim of delivery of 4 buffaloes on promise to pay later. The only averment made by the petitioner is regarding on spot cash payment to the complainant at the time of delivery of cattle. The claim of cash payment was made by the petitioner, so burden lies upon him to prove the payments. Assuming the fact of cash payment, then there has to be a source and so witnesses to such transactions, but no such specific and sound statement except filing of the present petition, was made by the petitioner to establish the cash payment on the spot to the complainant for the said deal. 10. Now, if it is assumed that sale and purchase of any goods and payment thereof is purely a civil contract then so long as parties are bonafide and willing to obey the terms & conditions under the contract then there is no criminality, thus mere non-fulfilment of any term does not constitute a criminal offence. Whenever there is allegation of nonfulfillment of promise and one of the party has already executed his part then the conduct of other party not abiding the terms of contract have to looked into. 11. Whenever there is allegation of nonfulfillment of promise and one of the party has already executed his part then the conduct of other party not abiding the terms of contract have to looked into. 11. In Hriday Ranjan Prasad Verma vs. State of Bihar & Another (2000) 4 SCC 168 , Hon’ble Supreme Court observed that there is a fine distinction between breach of contract and cheating, and it depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct. It has to be shown that there was fraudulent or dishonest intention right at the beginning of the transaction, the time when offence is said to have been committed. 12. Herein the buffaloes, which were admittedly taken in possession were neither returned back, if same remained as unsold nor were whereabouts explained. It was also not shown that the petitioner was present in the cattle fair and bonafidely attempted sale these 4 buffaloes. If these four buffaloes remained unsold on a price fixed by the petitioner then these cattle could be restored back to its original owner on the count that the same remained unsold but herein, no evidence to that effect was placed on record. Again assuming circumstances that due to any reason if these cattle fell ill or anything happened to buffaloes then there has to be some evidence on record to this effect to indicate loss suffered by petitioner but nothing was brought on record by him. The sequence of events clearly indicated that the conduct of petitioner was not bonafide, thus fraudulent intention of present petitioner for the purpose of cheating can be considered for the purpose of trial. 13. Aforesaid circumstances and evidence collected during investigation suggested that present petitioner, while taking possession of 4 buffaloes, made a promise to pay Rs.2.45 lacs to the complainant after sale of 4 buffaloes in cattle fair but there was no evidence to presume bonafide in favour of the petitioner. Thus, the promise made by the petitioner was with fraudulent or dishonest intention and to cause wrongful loss to complainant, which constitutes an offence of cheating. In my view, the investigating agency has not committed any error in furtherance of the investigation as carried out on the report of complainant-respondent No.2. Thus, the promise made by the petitioner was with fraudulent or dishonest intention and to cause wrongful loss to complainant, which constitutes an offence of cheating. In my view, the investigating agency has not committed any error in furtherance of the investigation as carried out on the report of complainant-respondent No.2. Herein, the petitioner has not cooperated during investigation and voluntarily remained absent by not joining the process so far. A charge sheet under Section 299 Cr.P.C. was already filed. The proceedings further indicated that due process as prescribed under the law was adopted by the trial Court. Hence, present petitioner is not entitled for any relief in the matter at hand. 14. Thus, the petition filed under Section 482, Cr.P.C. on behalf of petitioner being devoid of merit and the same is hereby dismissed.