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TMI Blog2021 (9) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, with circumspection and in rarest of rare cases. Exercise of inherent power under Section 482 of the Code is not the rule but the exception. The exception is applicable only when it is brought to the notice of the court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily. This court is not unmindful to note that there remains fine line of distinction between breach of contract and cheating. In case of cheating, it is the duty of the complainant to make out a case that from the very inception of establishment of commercial contractual relation between the parties, the accused had an intention to deceive fraudulently or dishonestly the complainant to induce him to deliver property. It is true that the complainant/opposite party No.2 failed to make out any such case in his petition of complaint. On the other hand, the petitioners paid part of consideration money to the opposite party No.2. Subsequently, the rest amount of ₹ 16,24,723/- was not paid to the opposite party No.2 - This court has inherent power under Section 482 of the Code amongst other to prevent abuse of the process of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh to the opposite party No.2 and at present the outstanding dues payable by the petitioners in favour of opposite party No.2 is ₹ 16,24,723. The opposite party No.2 requested the petitioners repeatedly to make payment of such outstanding dues, but the petitioners went on delaying all the said payment of the said sum of one pretext or the other. c) It is also an undisputed fact that the opposite party No.2 filed a complaint under Section 138/141 of the Negotiable Instrument Act against the petitioners after the cheques being dishonoured. The said petition of complaint was however returned to the opposite party No.2 by the learned Metropolitan Magistrate vide order dated 31st March, 2015 relying upon decision of the Hon ble Supreme Court in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra for filing the same to the court having jurisdiction. d) The opposite party No.2 however did not file the said complaint under Section 138/141 of the Negotiable Instrument Act before the court having jurisdiction. On the contrary he filed a petition of complaint under Section 156(3) of the Code of Criminal Procedure alleging, inter alia, that petitioners entered into a crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials from the opposite party No.2. He agreed to sale the said materials at a consideration price of ₹ 24,24,723/-. The petitioners made part payment of the outstanding dues and if at all the allegations made by the opposite party is true the efficacious relief lies in filing a suit for recovery of outstanding dues. The petitioners have no criminal liability in the instant case and continuation of the criminal proceeding being GR Case No.1524 of 2015 is abuse of process of the court and should be quashed. In support of his contention Mr. Bhattacherjee refers to the following decisions of the Hon ble Supreme Court :- i) Vir Prakash Sharma vs. Anil Kumar Agarwal : (2007) 7 SCC 373. ii) G. Sagar Suri vs. State of U.P : (2000) 2 SCC 636. iii) Anil Mahajan vs. Bhor Industries Ltd.:(2005) 10 SCC 228. iv) Satishchandra Ratanlal Shah vs. State of Gujrat : (2019) 9 SCC 148. v) Vinod Natesan vs. State of Kerala : (2019) 2 SCC 401. vi) Murari Lal Gupta vs. Gopi Singh : (2005) 13 SCC 699. vii) MedMeme LLC vs. iHorse BPO Solutions (P) Ltd.: (2018) 13 SCC 374. viii) Hotline Teletubes and Components Ltd. vs. State of Bihar, (2005) 10 SCC 261. 7. In Vir Prakash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. The substance of the complaint is to be seen. Mere use of the expression cheating in the complaint is of no consequence. 10. Satishchandra Ratanlal Shah s case (supra) came up before the Hon ble Supreme Court against an order of refusal of quashment of complaint by the High Court. The facts giving rise to the appeal before the Hon ble Supreme Court is that respondent No.1 is a money lending company of which respondent No.2 is the director. The appellant approached respondent No.2 for a loan. The respondent No.2 sanctioned the said loan on condition that the appellant would repay the same with interest within one year. However the appellant did not repay the said loan. On the contrary he threatened the respondent No.2 with dire consequence. The Hon ble Supreme Court held that mere breach of promise, agreement or contract does not ipso facto, constitute an offence of the criminal breach of trust within the meaning of Section 405 of the IPC without their being a clear case of entrustment. Moreover, some inability of the appellant to return the loan amount can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 141 of the Negotiable Instrument Act. Both the penal provisions operate in different fields. Therefore the FIR under Section 406/420 of the IPC cannot be quashed on the ground of non filing of complaint under Section 138/141 of the Negotiable Instrument Act. The opposite party No.2 did not mention in his petition of complaint which was treated as FIR that previously he filed a complaint under Section 138/141 of the Negotiable Instrument Act. Such omission cannot be described as willful suppression of fact and commission of fraud upon the court. 14. It is further stated in the written notes of argument on behalf of the opposite party No.2 that admittedly the petitioners offered to purchase C.R Coil weighing about 62.52 M.T at a consideration price of ₹ 24,24,723/-. The opposite party No.2 accepted such offer and delivered goods to the petitioners. The petitioners issued five numbers of cheques to make payment of the said amount. All the said cheques were dishonoured. So, from the very beginning the petitioners knew that they did not have sufficient money in the account to honour the cheques. In spite of the said fact being known to the petitioners they issued the cheques on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the beginning of the transaction, that is, the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. In the instant case I do not find any material of involving the ingredients of Section 420 of the IPC. There is neither any allegation nor any evidence that the petitioners deceived the opposite party at the time of initial transaction or that they fraudulently or dishonestly induced the opposite party to deliver any property. 17. In the instant case the petitioners practically admitted their outstanding dues by filing the instant application. It is contended on behalf of the petitioners that they have no fraudulent or dishonest intention to induce the opposite party to deliver the goods, viz, C.R Coil and the petitioners have already paid a sum of ₹ 8 (eight) lakh as part payment of the consideration money. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. e) Where there is an express legal bar contained in any of the provisions of the Code or the concerned act under which a criminal proceeding is instituted to the institution and continuance of the proceeding and/or where there is specific provision in the Code or the concerned act, providing efficacious relief for the grievance of the aggrieve party. f) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 21. This court is not unmindful to note that there remains fine line of distinction between breach of contract and cheating. In case of cheating, it is the duty of the complainant to make out a case that from the very inception of establishment of commercial contractual relation between the parties, the accused had an intention to deceive fraudulently or dishonestly the complainant to induce him to deliver property. It is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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