K. Lahiri, J.
1. This is an application under Section 561-A read with Section 439 of the Criminal Procedure Code, hereinafter to be referred as 'the Code,' for quashing a complaint case being Case No. 1384-C of 1971 pending in the Court of Shri S. N. Rahman, Magistrate, Ist Class (Judicial) at Gauhati.
2. Mr. J. P. Bhattacharjee, the learned Counsel appearing on behalf of the petitioner submitted that in the instant case there is no question of appreciating the evidence but it is a case in which by merely looking at the complaint this Court is to decide whether the offence alleged is disclosed or not. The learned Counsel submitted that the essential ingredients of the offence are absent in the present case and as such this is a fit case in which this Court should exercise Us inherent power under Section 561-A to prevent the abuse of the process of the Court or to secure the ends of justice.
3. The learned Counsel Mr. Bhairab Chandra Sarma appearing on behalf of the Opp-party has argued the case at length. He has contended that this is not a fit case in which the proceedings should be quashed as there are enough materials to establish at least a prima facie case. He submits that at any rate the Magistrate was satisfied when he took cognizance of the offence under Section 190 of the Code and issued process in the instant case. He further submits that I should judge the criminal intent of the accused from his statement and conduct of 17-1-1969 i. e. the date on which the amount was paid by his client. The learned Counsel further submits that the subsequent conduct of the accused, namely, his issuing cheques on 17-4-1969 should also be taken into consideration by me in order to judge the criminal intent although the same is a subsequent event. Now let me, take up the question as to the scope and jurisdiction of this Court to quash a proceedings initiated on complaint the cognizance whereof was taken under Section 190(1)(a) of the Code and the process was issued only after the examination of the complainant under Section 200 of 'the Code.' (The statement so recorded shall be referred to as 'the initial deposition'). In such a case, in my opinion, before quashing a criminal proceeding this Court should take into consideration not only the complaint but also the initial deposition in order to decide the crucial question as to whether the offence alleged is disclosed or not. The complaint and the 'initial deposition' were the foundations before the trial Court on the basis of which the proceeding was initiated. As such, I decide to take into consideration the complaint and also the initial deposition in order to dispose of the question as to whether the offence is disclosed or not. The jurisdiction to quash proceedings is very much there in Section 561-A of the Code. But the crucial question is as to where and how the High Court can and should exercise this jurisdiction. This power should be exercised to prevent 'the abuse of the process of any court or otherwise to secure the ends of justice.' The High Court should ordinarily be reluctant to interfere with criminal proceedings. But it is a settled law that even at an interlocutory stage the High Court should exercise its inherent power to quash such proceedings initiated on a complaint where the allegations contained therein and also in 'the initial deposition'' even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged. The reason being that in such cases the question of appreciating evidence does not arise. In such cases the Court is only to peruse the complaint and 'initial deposition' and to decide whether the offence alleged has been disclosed or not.
4. Therefore, in the instant Case I have to consider as to what are the essential ingredients of the offence under Section 420 I.P.C. as disclosed in the complaint and the initial deposition.
5. An offence under Section 420 of the Indian Penal Code is committed by a person when he cheats another and thereby induces the other so deceived to deliver any property etc. The term 'cheating' has been defined under Section 415 of the Indian Penal Code. In every offence under Section 420 I.P.C. the element of cheating must be present. The essential ingredients of cheating are (1) deception of any person.,
(2) (a) fraudulently or dishonestly inducing that person:
(i) to deliver any property to any person, or
(ii) to consent that any person should retain any property, or
(b) intentionally inducing that person to do or omit to do anything which that person would not have done or omitted 1o do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
6. Therefore, it is evident that if a person merely takes money on some statement, he does not commit an offence of cheating as contemplated under the law. Deception is one of the essential ingredients of the offence and if the same is absent no offence under Section 420 of the Indian Penal Code can be said to have been committed by a person taking money on loan. For the purpose of this case it shall be necessary and expedient to ascertain as to whether the accused took the money by deceiving the complainant on making any false statement just before or at the time when he took the loan. These principles of law have been well settled by their Lordhips in the Supreme Court and reiterated in innumerable decisions. This is also a settled law that the Dishonest intention of an accused cannot be inferred from the mere fact that he could not fulfil the promise! made by him. In the present case for the purpose of judging the criminal intent of the accused I shall have to consider as to whether any of the statements made by him on 17-1-1969, the date on which he took the money, he made any false representation to the complainant and thereby deceived him and on such deception the money was paid or not. The mere fact that the accused did not abide by the commitment should not fasten him with the ''riminal liability. In State of Kerala v. A. Pareed Pillai reported in : 1972CriLJ1243 it has been held by their Lordships in the Supreme Court as follows.:
To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise.
In the decision reported in : 1974CriLJ352 (Hart Prasad Chamaria v. Bishun Kumar Surekha) their Lordships considered a case of breach of promise. In that case the Patna High Court exercised power under Section 561-A, of the Criminal Procedure Code in quashing a proceeding under Section 420 of the Indian Penal Code holding that a mere breach of promise is not cheating and their Lordships in the Supreme Court affirmed the said decision. In the decision cited above their Lordships observed as follows:
There is nothing in the complaint to show that respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35,000/-. There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000/- by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating.
7. Therefore, I hold that in a case of this nature it is not enough for the complainant to allege that the accused has failed to keep or honour his promise. He is to establish by making some allegation that he was deceived by the accused and in order to show that he must make at least an allegation to the effect that he was dezeived by a false representation of the accused at or before the time he paid the money. I am of the firm opinion that there must be some allegation that the intention of the accused was dishonest at the time of the making of promise or the representation and such dishonest intention cannot be inferred from the mere fact that the accused could not subsequently fulfil his promise. I am of the opinion that if these essential ' elements of the offence under Section 420 I.P.C. are not even alleged in the complaint petition or stated in the initial deposition this Court can quash proceedings in exercise of its power under Section 561-A of the Code.
8. Now, let me consider as to whether in the complaint and in the 'initial deposition' the complainant has brought home a charge of offence against the accused person.
9. The requisite events and facts necessary for the case are that the present complaint was filed on 22-9-1971 and the learned Magistrate to whom the case was transferred examined the complainant under Section 200 of the Code and issued a bailable warrant of arrest against the accused to meet a charge under Section 420 of the Indian Penal Code.
10. The allegations as contained in the complaint petition are that the petitioner was the managing partner of a firm named and styled 33 M/S R. S. Construction Company (Architects, Builders etc) of Nongram Hills, Nongthumai, Shillong having branches of the firm at Gauhati, Calcutta, Siliguri, Jalpaiguri, Tezpur and Dimapur. It was specifically mentioned in the complaint that the accused-petitioner was known to the complainant. It was stated in the complaint that on 17-1-1969 the accused approached the complainant and told him that he was in urgent need of money and that he had sufficient money in their branch account? and promised to repay therefrom and accordingly took a sum of Rs. 25,000/- as loan from the complainant. After exactly three months the accused issued a cheque dated 17-4-1969, but before it was presented for payment the accused petitioner cancelled the same and issued another cheque bearing the same date favouring the complainant drawn on the Gauhati Bank. The complainant enquired from the Bank and found that the accused had not had sufficient money to cover the amount in cheque and the complainant waited for some time and then again presented the said cheque for payment but the Bank returned the cheque stating that the amount quoted in the cheque exceeded the arrangement that the Bank had with the accused. Thereafter, it was alleged that the accused did not turn up to honour the cheque or made any arrangement for payment thereof to the complainant. It was further alleged that the complainant would not have made the payment but for the inducement made by the accused to the complainant stating that they had sufficient money in the Branch accounts. The complainant explained the delay of filing the complaint and stated that he was awaiting payment of the amount from the accused.
11. While the complainant was examined under Section 202 of the Indian Penal Code he made the following statement on oath:
Monoranjan Sinha is the managing partner of R. S. Construction, On 17-1-1969 he came to me and took a loan of Rs. 25,000/- for urgent work and took the money showing me the pending bills and pass book saying that he would send the money by cheque. On 17-4-1969 he gave a cheque of Rs. 25,000/- and on going to the Bank I did not find money in his account. He sent another cheque in my :name cancelling that cheque. The Bank returned me the cheque. He did not give me money as he did not have money in his account. If the accused (O. P.) would not have shown me the pending bills and the pass book, I would not have given him the money. He took money by cheating and defrauding me. Witnesses are J. C. Shyam, R. K. Vyas and other persons.
On the above complaint and on the basis of the initial statement recorded by the trial Court, process was issued against the accused to meet a charge under Section 420 of the Indian Penal Code.
12. For the purpose of this application I shall assume that all the allegations of fact which have been made in the complaint by the opposite party are correct. There is a positive complaint made that a sum of Rs. 25,000/- was paid by the complainant to the accused on 17-1-1969 as disclosed in the complaint and the initial deposition. It is also clearly evident from the complaint petition that the accused was the managing partner of the firm, named and styled in the complaint petition having six branches in Assam, Nagaland and West Bengal besides the head office situated in Meghalaya. But merely taking the money on some statement is not 'cheating' as contemplated under the law. Deception is the essential ingredient of the offence. Therefore, in the instant case it is essential to ascertain as to whether the accused made any false statement on 17-1-1969 while he took the money. Nay not only that whether there is any allegation in the complaint petition to the effect that any of the statements made by the accused on 17-1-1969 when he took the money in question was false and that on such false representation the accused managed to get the money. The accused took the money as it is apparent from the complaint petition as also from the initial deposition. Therefore, it was a case of borrowing. What representations were made by the accused at the time when he took the money as revealed from the complaint petition, I am setting forth herein below:
(1) That the accused had urgency to have the money;
(2) That in their branch accounts they had sufficient money; and
(3) That he promised to repay therefrom, meaning from the branch account.
There is no statement made by the complainant that the accused had no urgency in taking the money on that date. There is no averment anywhere in the complaint petition or in the initial statement that the branch offices of the accused had no sufficient money on 17-1-1969. I shall deal with the question of the effect of the promise made by the accused to repay the loan and as to whether it is sufficient to establish the essential ingredients of the offence. In my view, every loan is taken with a promise to repay it in future. Mere failure to repay the amount of loan does not amount to an offence under Section 420 of the Indian Penal Code. The entire case of the complainant is that on the representations as set forth above the loan was advanced to the accused. The complainant has not stated that any of these representations was false or untrue and that by making any false statement the accused persuaded him to part with the money.
13. Let me now consider the initial deposition of the complainant and try to find out as to whether any false representation was made by the accused at the time when he took the loan in question. In the initial statement also we find that the money was taken as a loan for urgent work and that it was taken after the accused had shown their pending bills and pass book. The complainant must have seen the same and on looking into them he must have made the payment. Herein I stop and proceed no further in regard to that matter. Therefore, according to the initial statement on oath the complainant stated that he made the payment because the accused had shown him their bills and pass book. There is nothing in the statement or in the complaint petition that either the bills were false or fictitious or that the pass book which was shown to the complainant was similarly fictitious or false. Therefore, by showing pending bills and pass books if a person takes money and cannot subsequently make the payment for some reason or other, the essential ingredients or the offence of cheating are not made out. The learned Counsel for the Opposite Party submitted that it was undoubtedly true that the complainant did not make any statement which was false on 17-1-1969, but I must take into consideration the subsequent conduct of the accused inasmuch as he had issued the cheques or 17-4-1969, and one such cheque was not honoured by his Banker. According to the Banker the amount exceeded the arrangement On 17-4-1969, the complainant did not part with any property etc. and therefore, it cannot be stated that the accused cheated the complainant on 17-4-1969. The learned Counsel appearing on behalf of the complainant submitted that it may be taken as subsequent conduct. I am of the opinion that the submission of the learned Counsel appearing on behalf of the opposite party is misconceived. The subsequent conduct of an accused person cannot be taken into consideration to judge his intention of an earlier date. Therefore, there is nothing in the complaint to show that the petitioner had dishonest or fraudulent intention at the time the opposite party parted with the money. The complaint and the initial deposition recorded under Section 200 of the Code do not indicate that the petitioner had induced the opposite party to pay him the money on some false statement. There is no allegation, as stated by me earlier, by the complainant that any of the statements made by the accused on 17-1-1969 or any of the representations made to him at or before the time of making the payment, was false. I have already held above that the subsequent conduct of the accused 5s not at all relevant for the purpose of this case.
14. Therefore, I hold that in the instant case there is nothing to show that the petitioner induced the Opposite Party to pay the money by deceiving him. In the present case it does not appear either from the complaint petition or from 'the initial deposition'' that the accused made any representation which was false or which the accused knew to be so. The mere fact that the accused could not make the payment is of no avail in a complaint under Section 420 of the Indian Penal Code. Therefore, I am of the firm view that no case under Section 420 of the Indian Penal Code is made out by the complainant in his complaint petition or in his initial statement recorded under Section 200 of the Code. By merely looking at the complaint petition and 'the initial deposition' or both I find that the offence alleged is not disclosed. Therefore in order to prevent the abuse of the process of the Court and also to secure the ends of justice, I quash the proceedings in Case No. 1384C of 1971 now pending before the Magistrate, Ist Class (Judicial) at Gauhati.
15. The petition is allowed.