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TMI Blog2008 (12) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... tiation of a criminal proceeding, there cannot be any doubt whatsoever that in absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction u/s 482 of the CrPC. Section 482 of the Code of Criminal Procedure, saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him - We may reiterate that one of the ingredients of cheating as defined in Section 415 of the IPC is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non-existent. The Superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent paid a sum of ₹ 3,00,000/- to the firm as advance and part payment of the said consideration. There has been a change in the specifications of the said machine purported to be on the request of the second respondent in terms whereof two extra modules thereto were provided. A revised offer was made. The said machine, although was to be manufactured and supplied within a period of three months, the same was not complied with. 4. A partner of the second respondent along with its technical engineer visited the site of the firm. Allegedly, it was found that the said machine did not conform to the specifications contained in the order placed with the firm. It refused to take the delivery thereof. To the said effect, the second 3 respondent, by a letter dated 7.4.1998 called upon the firm to return the amount of advance, stating: Please take a trial your Laboratory as discussed and concentrate between 25 to 30% collect it in a new plastic drum after good cleaning. I am quite sure that this dye has got a molecular wt. around 400 and p/h in between 4.5 to and I am hopeful that your R.O. Machine should work for this dye only and you have manufactured for another. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has rightly refused to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure which can be resorted to only in rarest of rare cases. 9. We have been taken through the complaint petition in its entirety. Indisputably, the parties entered into a contract in terms whereof the firm was to manufacture a machine to purify and desalt the dyes of a particular quality and quantity. The specifications for the machine were changed. First appellant issued a letter dated 20.2.1998 to the complainant, stating: Further to our letter No. P:G:971:97 dated 2.2.98 and subsequent visit of our Mr. Sunil Rao. Please find enclosed herewith our revised offer for your reference. You may note that we are giving two module extra free of charge in the system so that the total number of modules becomes 105 no's instead of the committed 103 no's. We are also enclosing herewith the detailed assembly drawing for your reference. Since the system is totally skid mounted the system can be installed on a leveled platform. I am sure this will fulfill your pre-dispatch requirement. In case you need any additional details kindly let us know so that we can provide the same. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to reproduce the wordings of a penal provision in the complaint petition, but, there cannot be any doubt whatsoever that the facts disclosing the ingredients of the offence must be averred. There cannot, furthermore, be any doubt that only because civil law can be taken recourse to would not necessarily mean that criminal proceedings should be barred as has been opined by this Court in Pratibha Rani v. Suraj Kumar and Anr. : 1985CriLJ817 . We are, however, not concerned in a case of this nature where the allegations were clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove her case as has been noticed by the High Court in the said judgment. This Court therein also, while laying down the law that the High Court would have no jurisdiction to examine the correctness of the allegations, opined: In case no offence is committed on the allegation and the ingredients of Section 405 and 406, IPC are not made out, the High Court would be justified in quashing the proceedings. Reliance has also been placed by Mr. Jain on Rajesh Bajaj v. State NCT of Delhi and Ors. : 1999CriLJ1833, wherein Thomas, J. opined: 10. It may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the 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 allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted 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. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cogniz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract. Section 482 of the Code of Criminal Procedure, saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. It is one thing to say that a case has been made out for trial and as such the criminal proceedings should not be quashed but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all. 16. In Hira Lal Hari Lal Bhagwati v. CBI : 2003CriLJ3041 , this Court held: 40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd finally intentionally inducing that person to do or omit to do anything which he would not do or omit. No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception. 14. What has been alleged in the complaint petition as also the statement of the complainant and his witnesses relate to his subsequent conduct. The date when such statements were allegedly made by the appellant had not been disclosed by the witnesses of the complainant. It is really absurd to opine that any such statement would be made by the appellant before all of them at the same time and that too in his own district. They, thus, appear to be wholly unnatural. 15. In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any intention on the part of the appellant herein to commit an offence under Section 417 of the Penal Code. 16. Furthermore, admittedly, their residences are in different dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused. 20. It is in that sense, a distinction between a mere breach of contract and the offence of cheating should be borne in mind. We, having regard to the facts and circumstances of the case, are of the opinion that no case has been made out and against the appellant so as to hold that he should face the criminal trial. 21. Before parting, however, we may notice a decision of this Court in from State of Madhya Pradesh v. Awadh Kishore Gupta : 2004CriLJ598 whereupon strong reliance has been placed by Mr. Jain. This Court, therein upon referring to Bhajan Lal (supra) opined as under: 11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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