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2024 DIGILAW 341 (HP)

Magic Mountain v. Gagan Kapoor

2024-07-19

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. The petitioners have filed the present petition for quashing of a private complaint bearing Criminal Complaint No. 5/2 of 2022 and further proceedings taken pursuant to it in the Court of learned Judicial Magistrate First Class, Kasauli, District Solan, H.P. in a case titled Gagan Kapoor vs M/s Magic Mountain & ors. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court. It was asserted that the complainant is owner in possession of a building known as “The Nest”, Engine Ghar Road, Sanjauli, District Shimla, H.P. The complainant and accused No. 1 to 5 had execut ed a rent agreement on 26.12.2018, vide which the accused were inducted as a tenant by the complainant in a building known as “The Nest” @ Rs.1,00,000/- plus GST @18% per month, payable in advance on or before 7th day of every month. The rent amount alongwith 18% GST for the month of January was paid through a cheque. The accused were in arrears of monthly rent alongwith 18% GST from July 2019 onwards. They issued a cheque for Rs.6,80,000/- in favour of the complainant drawn on Indusind Bank Sanjauli, Shimla with the false assurance to the complainant that the cheque would be honoured on its presentation in the bank; however, when the complainant presented the cheque, it was dishonoured. The complainant filed a complaint for dishonour of the cheque, which is pending before learned Additional Chief Judicial Magistrate, Kasauli, H.P. for adjudication. The accused used the materials including bricks, wood, glass, chairs etc. lying in the above-mentioned tenanted premises. They left the premises without informing the complainant and removed the furniture, fixtures, decoration items, light and other things thereby committing theft amounting to Rs.5.00 lac. They destroyed the glass windows, furniture and other available materials. A complaint was made to the Police Station at Sanjauli but no action was taken. Hence, it was prayed that action be taken against the accused for the commission of offences punishable under Sections 379, 406, 420, and 427 read with Section 34 of IPC. 3. They destroyed the glass windows, furniture and other available materials. A complaint was made to the Police Station at Sanjauli but no action was taken. Hence, it was prayed that action be taken against the accused for the commission of offences punishable under Sections 379, 406, 420, and 427 read with Section 34 of IPC. 3. The learned Trial Court recorded the preliminary evidence and found sufficient reasons to summon the accused for the commission of offences punishable under Sections 379, 406, 420, and 427 read with Section 34 of IPC. 4. Being aggrieved from the order passed by the learned Trial Court, the accused have filed the present petition asserting that the learned Trial C ourt erred in summoning the accused/petitioners. It was asserted that the condition of the premises was not fit for running smooth business of the restaurant. The toilet, washroom and Kitchen were not available and even the walls were not properly furnished. The accused contacted the complainant and it was orally decided that the accused would spend Rs.2,00,000/- for the construction of the toilet, washroom and kitchen and repair of the back walls and internal portion of the rented premises. It was also agreed that the accused would hand over three un-dated blank cheques to the complainant as security, which were to be returned at the time of leaving the premises. The accused handed over three undated signed blank cheques to the complainant as security. The complainant started interfering in the running of the business in June 2019. The accused could not run the business smoothly and earn a profit. They could not pay the rent for the month of July 2019. The complainant disrupted the water and electricity supply. He sent an e-mail on 12.08.2019. The accused replied that the delay in payment of rent was due to the loss in business caused by the intervention of the complainant. The complainant presented the cheque of Rs.1,00,000/- for encashment in March 2019 without the consent of the accused. The complainant advised the accused to clear the rent by 31st August 2019 and asked them to vacate the premises by 31st August 2019. They informed the complainant that their liability towards the rent was only Rs.2,26,000/- due to his illegal intervention. The accused paid Rs.7,00,000/- to the complainant and spent Rs. The complainant advised the accused to clear the rent by 31st August 2019 and asked them to vacate the premises by 31st August 2019. They informed the complainant that their liability towards the rent was only Rs.2,26,000/- due to his illegal intervention. The accused paid Rs.7,00,000/- to the complainant and spent Rs. 3 Lakhs for the construction of the toilet, washroom, kitchen and repair of the walls of the premises. The accused received a message on 18.09.2019 from their bank that one cheque of Rs.6,80,000/- was presented for its realization. The complainant presented the cheque without intimating the accused. The accused issued a legal notice dated 19.09.2019 informing the complainant that they would hand over the vacant possession to him by 25.09.2019 and the complainant should return the three blank signed cheques along with Rs.3,00,000/- spent on the construction of the kitchen, toilet and the repairs of the walls. The accused handed over the possession peacefully to the complainant but the complainant made a false complaint through his caretaker. The matter falls within the jurisdiction of Police Station Sanjauli. Learned Trial Court had no jurisdiction in the matter. The caretaker of the complainant made a complaint to t he police. The police conducted the investigation and found that the accused had vacated the premises and no offence had taken place. The matter was civil in nature. A complaint is already pending under Section 138 of the NI Act before the learned Trial Court. The complainant started interfering with the business of the accused, due to which the accused could not carry on their business. The allegations in the complaint do not constitute the commission of offences punishable under Sections 379, 406, 420 and 427 read with Section 34 of IPC. Hence, it was prayed that the present petition be allowed and the complaint be dismissed. 5. No reply to the petition was filed. 6. I have heard Mr. L.S. Mehta, learned counsel for the petitioners/accused and Mr. Vaibhav Kanwar, learned counsel for the respondent/complainant. 7. Mr. L.S. Mehta, learned counsel for the petitioners/accused submitted that the learned Trial Court had no jurisdiction to hear and entertain the present complaint, as the entire cause of action had taken place at Shimla between the parties. The dispute between the parties was civil in nature, which was being converted into a criminal complaint. 7. Mr. L.S. Mehta, learned counsel for the petitioners/accused submitted that the learned Trial Court had no jurisdiction to hear and entertain the present complaint, as the entire cause of action had taken place at Shimla between the parties. The dispute between the parties was civil in nature, which was being converted into a criminal complaint. He prayed that the present petition be allowed and the complaint filed before the learned Trial Court be dismissed. 8. Mr. Vaibhav Kanwar, learned counsel for the respondent/complainant supported the order passed by the learned Trial Court and submitted that no interference is required with the same. 9. Learned Trial Court held that as per Section 179 of Cr.P.C. the Court within which the effect/repercussion of the criminal act occurs, had the jurisdiction to try the matter. In the present case, the cheque was dishonoured at Parwannoo by HDFC Bank; therefore, the Court at Kasauli will have juri sdiction. Learned Trial Court further held that if the intention of the person is dishonest from the beginning an offence under Section 420 of IPC is made out. 10. The complaint does not mention that the cheque was handed over before the parties entered into an agreement. It mentions that parties entered into agreement first and when the accused were in arrears of rent, the complainant demanded the rent from them. The accused issued a cheque on 17.09.2019 for Rs.6,80,000/- in his favour with the false assurance that the cheque would be honoured. The agreement was entered into between the parties on 26.12.2018. The complaint does not show that the complainant was persuaded to enter into an agreement with the accused persons because of the cheque dated 17.09.2019 handed over to him and he would have not entered into an agreement but for the cheque having been given to him. Hence, the complaint filed by the complainant does not satisfy the criterion laid down by the learned Trial Court. 11. It appears from the perusal of the complaint that a cheque was issued in the discharge of antecedent liability to pay the rent. It was laid down in M.M.S.T. Chidambaram Chetttiar v. Shanmugham Pillai, 1937 SCC OnLine Mad 201 that issuance of a cheque after the transaction does not amount to cheating. 11. It appears from the perusal of the complaint that a cheque was issued in the discharge of antecedent liability to pay the rent. It was laid down in M.M.S.T. Chidambaram Chetttiar v. Shanmugham Pillai, 1937 SCC OnLine Mad 201 that issuance of a cheque after the transaction does not amount to cheating. It was observed: “The facts of this case are simple:—The petitioner was an owner of motor buses plying for hire from Tanjore to other places. He used to take petrol and oil on credit from the firm of A.S. Manickam & Co. By the beginning of 1937 he owed this firm over Rs. 3,000. The firm refused him further credit and threatened to sue him. On 23rd March 1937, the petitioner gave the firm a post-dated cheque for Rs. 3250 (dated 2nd April 1937). He was not however afterwards allowed any further credit, and had to pay cash for everything. On 5th April 1937, the firm presented the cheque at the Bank for encashment, but the cheque was dishonoured. Nothing further happened until more than 3 months later, viz., on 12th July 1937, when a clerk of the firm filed a criminal complaint of cheating against the petitioner, setting out the above facts. The Sub-Divisional Magistrate, Tanjore, took this complaint on file under Ss. 415 and 417 of the Penal Code, 1860, and sent it to the Stationary Sub-Magistrate, Tanjore, for disposal, who ordered the process to issue to the petitioner. On 9th August 1937, A.S. Manickam & Co. filed a suit against the petitioner for the sum owed by him and applied for attachment before the judgment of his motor buses. The petitioner on 20th August 1937 filed an application asking the Stationary Sub-Magistrate, Tanjore, not to proceed further with the criminal complaint since no offence was disclosed and since the complaint was filed to coerce, harass and humiliate him. This petition has been dismissed, the High Court has now been moved. In my judgment, the complaint in question does not on its face show that any criminal offence has been committed. In the offence of cheating (S. 415 I.P.C.) there are two elements— deception and dishonest inducement to do or omit to do something. Let it be assumed that the petitioner deceived and was dishonest. Mere deception is not a criminal offence. Mere dishonesty is not a criminal offence. In the offence of cheating (S. 415 I.P.C.) there are two elements— deception and dishonest inducement to do or omit to do something. Let it be assumed that the petitioner deceived and was dishonest. Mere deception is not a criminal offence. Mere dishonesty is not a criminal offence. The crux of the question in this case is whether A.S. Manickam & Co. were induced by the petitioner's dishonest deception not to file a suit at once against him. On the facts stated it is clear that they were not. The post- dated cheque was given on 23rd March 1937 and dishonoured on 5th April 1937 (13 days) but no suit was filed until 9th August 1937 (a further delay of 4 months). Moreover, to establish the offence of cheating the complainant would have to show not only that he was induced not to file a suit for 13 days but that this induced omission on his part caused or was likely to cause him some harm or damage in body, mind, reputation or property—which are presumed to be the four cardinal assets of humanity. The complaint does not even assert that such harm or damage was caused or was likely to be caused, and it is obvious from the circumstances that no such harm or damage was or could have been caused. A post-dated cheque in payment of goods already received is a mere promise to pay on a future date [see H.K. Shaw v. Suresh Chandra AIR 1936 Cal. 324 ] and a broken promise is not a criminal offence, though it may amount to certain business relations to discreditable behaviour.” 12. It was further held that the continuation of proceedings in such a situation cannot be permitted. It was observed: The inherent jurisdiction of this Court to pass any orders necessary to prevent abuse of the process of any Court is not questioned and indeed has been clearly expressed in S. 561-A of the Criminal Procedure Code. Since prevention is always better than cure, the obligation to prevent specious and spiteful criminal prosecutions for actions which, though strictly dishonourable, yet do not amount to crimes is one that must never be shirked. Since prevention is always better than cure, the obligation to prevent specious and spiteful criminal prosecutions for actions which, though strictly dishonourable, yet do not amount to crimes is one that must never be shirked. In the world of business, things are often done that are betrayals of confidence and deceptions which arouse moral indignation but are nevertheless civil wrongs which can be righted by Civil Courts and are not crimes which can be punished by a Criminal Court. N ot every immoral act is criminal and it is an abuse of the process of a Court to attempt to create new crimes to compel men to conform to a high standard of probity in business dealings or to force them to execute their promises. 13. Hence, the issuance of the cheque and its dishonour will not constitute cheating. 14. It is undisputed that the premises were taken on rent at Shimla. The complainant alleges that articles were stolen and property was damaged at Shimla, therefore, the learned Court at Kasauli, District Solan, H.P. had no territorial jurisdiction to hear and entertain the complaint regarding the theft and mischief committed at Shimla. 15. The learned Trial Court acquired jurisdiction on the reasoning that the cheque was dishonoured at Parwanoo, H.P. Since the issuance of the cheque and its dishonour in the present case do not constitute cheating; therefore, jurisdiction could not be acquired by the dishonour of the cheque. 16. Consequently, the learned Trial Court erred in exercising the jurisdiction in the matter. Hence, the order passed by the learned Trial Court summoning the accused is ordered to be quashed. The complaint is ordered to be returned to the complainant for its presentation before the appropriate Court having jurisdiction.