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TMI Blog2024 (2) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... medy under the Negotiable Instruments Act. It appears that statutory notice etc. was not issued and the present FIR was registered, which clearly suggests that Section 138 of the Negotiable Instruments Act is not made out. There is no doubt that the document of unimpeachable character can be considered, however, if such dispute is there, that cannot be appreciated under Section 482 Cr.P.C. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of SURYALAKSHMI COTTON MILLS LTD. VERSUS RAJVIR INDUSTRIES LTD. ORS. [ 2008 (1) TMI 865 - SUPREME COURT] , where it was held that The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. There is no doubt that mere breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement, as has been held by the Hon'ble Supreme Court in the case of INTERNATIONAL ADVANCED RESEARCH CENTRE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echnology from China and asked the informant to build a new factory, it would give lots of benefit. It was further alleged that the petitioner taking the informant into confidence took a cheque of Rs. 51,00,000/- Lakh and remained absconded for three months. When the informant made enquiry then he came to know that there is no such technology from China and when the informant put the cheque for encashment then the cheque was bounced for insufficient fund and stop payment. 4. Mr. Kaushik Sarkhel, learned counsel for the petitioner submitted that the investigation was not made in accordance with law. He submitted that the Investigating Officer has submitted final form in absence of any cogent material against the petitioner and the petitioner has been put to trial. He further submitted that no case under Sections 406 and 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act is made out. He also submitted that the entire case of prosecution is devoid of criminal mens rea and the instant prosecution is merely a misuse of the process of law. By way of referring the contents of the FIR, he submitted that if any case is made out i.e. under Section 138 of the Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has stated about manufacturing status of plant and equipment for 500 TPD iron ore sinter and 100 TPD briquetting/pellesting plant as on date and also for clearing the dues of Rs. 7,57,774/- by giving details of work done. He submitted that another letter dated 01.11.2011 was sent and request was made for payment of rest of the amount of Rs. 43,61,840/-. He also submitted that the said cheque was obtained from the petitioner at the gun point by putting him in tremendous fear of life and, thereafter, the complainant/informant filed P.C. Case No. 101/2011. He further submitted that M/s Asansol Infotech and Industrial Consultancy Services Limited (AIICSL) has issued legal notice dated 14.11.2011 through Advocate addressed to the informant demanding to return of cheque and balance payment of Rs. 44,00,000/- within 7 days. On these facts, he submitted that no case of cheating under Sections 406 and 420 of the Indian Penal Code as well as under Section 138 of the Negotiable Instruments Act is made out. He relied upon the judgment passed by Patna High Court in the case of Praveen Kumar v. The State of Bihar in Criminal Miscellaneous No. 25231 of 2011 and submitted that in id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheating. On the other hand, if all that is established is that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. In S.W. Palanitkar v. State of Bihar [(2002) 1 SCC 241 : 2002 SCC (Cri) 129], this Court held as under: (SCC p. 250, para 21) 21. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. The above view in Palanitkar case [(2002) 1 SCC 241 : 2002 SCC (Cri) 129] was referred to and followed in Rashmi Jain v. State of U.P. [(2014) 13 SCC 553 : (2014) 5 SCC (Cri) 751] Relying on the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of M.E. Shivalingamurthy v. Central Bureau of Investigation, Bengaluru, reported in (2020) 2 SCC 768. Paragraph 17 of the said judgment reads as under: 17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] and discern the following principles: 17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court. 17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 12. The scope of Section 227 of the Code was considered by this Court in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533] , wherein this Court observed as follows: (SCC pp. 41-42, para 4) 4. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Relying on the above judgment, Mr. Sarkhel submitted that strong suspicion is lacking in the case in hand and in view of that, the petitioner is fit to be discharged. 8. The said arguments of Mr. Kaushik Sarkhel has been resisted by Mr. Siddhartha Roy, learned counsel for opposite party no. 2 on the ground that the petitioner has induced opposite party no. 2 to part with Rs. 51 Lakhs and even after the same, no work was done as there was no technology from China and everything was a blatant lie. He further submitted that so far as the documents at Annexure-4 onwards are concerned, on which, the petitioner is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is being considered on the discharge petition, the same is required to be considered in light of the judgment passed by the Hon'ble Supreme Court in the case of Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra , reported in (2008) 10 SCC 394 and the same was further considered by the Hon'ble Supreme Court in the case of Sandeep Sunil Kumar Loharia v. Sumeet Ganpatrao Bachewar and another in Criminal Appeal No.1051 of 2018 [Arising out of SLP (Crl.) No. 2313 of 2017] and tagged matters. 12. Mr. Roy, learned counsel for opposite party no. 2 further submitted that if the amount is taken on assurance to complete the project and the amount was paid on inducement and the work was not completed, the case of cheating is made out. He relied upon the judgment passed by this Court in the case of Anuj Kumahar @ Anuj Kumar and others v. The State of Jharkhand and another in Cr.M.P. No.1057 of 2014. 13. It is an admitted position that the petitioner and the informant have entered into transaction for installing a plant on Chinese technology. It appears that after taking cheque of Rs. 51 Lakhs, the petitioner was traceless for about 3 months and thereafter he was tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. 16. In the judgment relied by Mr. Sarkhel, learned counsel for the petitioner in the case of Praveen Kumar (supra) in identical situation, the case under Sections 406 and 420 was maintained, however, the case under Section 138 of the Negotiable Instruments Act was set aside and finding of not making out the case under Section 138 of the Negotiable Instruments Act in the present case has already been taken note of by this Court in paragraph 13 of this judgment. 17. There is no doubt that mere breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement, as has been held by the Hon'ble Supreme Court in the case of International Advanced Research Centre for Powder Mettalurgy and New Materials (supra) as relied by the learned counsel for the petitioner, however, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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