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TMI Blog2021 (12) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner is that absolutely there is no intention whatsoever to deceive the 2nd Respondent/defacto complainant. Therefore, mere default committed on later part cannot constitute the offence under Section 420 I.P.C. Learned counsel further submitted that there is no fraudulent or dishonest intention on the part of the Accused. Therefore, in the absence of any culpable intention on the part of the accused keep their promise, the offence under Section 420 I.P.C. cannot be pressed into service. Therefore, mere breach of contract would not give rise to an offence of cheating, unless deception played by the accused was present from the very inception. 3. Learned counsel for the Petitioners further submitted that FIR itself registered after obtaining the direction from this Court. Though the cheques were dishonoured the defacto complainant not initiated any action under Section 138 of the Negotiable Instruments Act, that itself clearly indicate that there is only a breach of contract and there was no deception played by the accused. Whereas wife has also implicated in order to coerce the payment from the husband and the company has not made an accused. Therefore, the entire lod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and wife made false representation from the beginning and the allegations in the FIR clearly substantiated the same. Such being the matter the FIR cannot be quashed at this stage. 6. In support of his contention, he relied upon the following judgments: 1. Vijayander Kumar and Ors. vs. State of Rajasthan and Ors. (2014) 3 SCC 389] 2. Sangeetaben Mahendrabhai Patel vs. State of Gujarat and Ors. [ (2012) 7 SCC 621. 3. Lakshman vs. The State of Karnataka and Ors. [ (2019) 9 SCC 677] 4. Rajesh Bajaj vs. State NCT of Delhi and Ors. [ (1999) 3 SCC 259] 7. FIR has been registered on the basis of the report given by the Defacto Complainant and it is specifically stated that the Defacto Complainant supplied materials only on the promise and assurance given by the Accused. Defacto Complainant has not interested to supply the goods in view of irregular payment by the accused made to believe that payment would be made and three cheques were issued, thereafter, other six cheques were issued by the first Accused. All the cheques were dishonoured. Therefore, FIR has been filed under Section 406 and 420 IPC. 8. It is the contention of the learned counsel for the Petitioner that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the police cannot be transformed into a collection agent particularly when the cheques were dishonoured. 15. In Duraisamy vs. The Inspector of Police [Crl.O.P. No. 1128 of 2016 Madras High Court dt. 07.06.2021] this Court has held that in a contract in dispute mere non-payment of amount lieu cannot said to be a cheating. 16. In the above cases the Apex Court and this Court have quashed the complaints on the ground that there is no essential ingredients of Sections 406 and 420 IPC. From the above judgments it is also clear that mere civil proceedings are pending the same itself cannot be a ground to quash the FIR. 17. In S.M.S. Pharmaceuticals Ltd., case (supra) petition has been filed to quash the proceedings under Section 138 of N.I. Act, wherein the Honourable Apex Court has held that unless a specific averment in the complaint that the Director is in charge of and responsible to the company for the conduct of its business, the Director cannot be prosecuted. 18. In Sharad Kumar Sanghi's case (supra) the Honourable Supreme Court has held that when the company has not arrayed as party, criminal proceedings initiated against the Managing Director is not maintainable. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s case (supra) the Honourable Apex Court has held that even there is pendency of proceedings under Section 138 of the Negotiable Instruments Act, not a bar for initiating criminal prosecution under section 420 IPC for the same offence. 26. In Rajesh Bajaj case (supra) the Honourable Supreme Court has held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest and fraudulent. If the factual foundation for the offence has been laid in the complaint the court should not hasten to quash the criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. In para 10 of the above judgment, it is held as follows: "10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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