G.K. Misra, C.J.
1. Jarnal Singh (opposite party) filed a complaint against Satyabrata Bhattacharya (petitioner) on 28-6-1974 alleging that he committed criminal breach of trust so far as the amount of Rs. 3,000/- is concerned and cheated the complainant to the extent of Rs. 1,10,000/-. The facts, on the basis of which the allegations are made, may be stated as in the complaint petition itself. We are disposing of this case on the assumption that the entire allegation in the complaint petition is true as also the statement of the complainant made on oath. Allegations are that the accused entered into a contract with the complainant and entrusted him certain construction work fop which specific rates were fixed. In the execution of the contract, trucks were to be hired and the hire charges were to be paid by the accused. The accused was also to pay dues from time to time towards the cost of the work which was being executed by the complainant. The substantial allegations on which the offence is said to be made out may now be extracted in the language given in the complainant itself,
3. That on 25-54974 the accused was to pay a sum of Rs. 1,10,000/- (approximately) to the complainant. Besides this two truck owners, who were in immediate need of some funds, demanded payment of their truck hire on 25-5-1974 at about 3 p.m. As the accused had no ready cash available, he requested the complainant to entrust him with Rs. 3,000/- to which the complainant obliged. Out of this amount of Rs. 3,000/- the accused paid Rs. 1,000/- to one Lai Singh, the owner of truck bearing ORP No. 4283 and paid the balance amount of Rs. 2,000/- to one Sukhdev Singh, the owner of the truck bearing No. ORS 4523. The complainant entrust, ed this amount to the accused on the specific condition that the same has to be refunded by the forenoon of the next Bank transaction day, that is, on 27-5-1974. He also promised to pay up the entire dues of the complainant by the said date.
4. That the accused with the mala fide intent to defraud the complainant left Berhampur on 26-5-1974 night and did not return again, nor made any arrangement either to repay the amount of Rs. 3,000/- taken on the specific undertaking, nor paid up the dues of the complainant amounting to Rs. 1,10,000.
5. Thus the complainant went to Calcutta to the office of the accused but he made himself scarce and concealed his presence. Thus, the mala fide intent of the accused to cheat the complainant is manifestly clear.
6. That the accused has committed breach of the trust as far as the amount of Rs. 3,000/- is concerned and cheated the complainant to the extent of Rs. 1,10,000/-. That it is expedient in the interest of justice that the accused be punished in accordance with law.
The complainant was examined on oath on the very same day. Therein he did not make any statement with regard to cheating of Rs. 1,10,000/- but made a statement that the accused came and took Rs. 3,000/- from him on the understanding that this amount with arrears due would be paid on 27-5-1974 on the reopening of the bank. He paid Rupees 2,000 to Lai Singh and Rs. 1,000 to Sukadev Singh on 26-5-1974, went away without payment of money to Calcutta and the complainant did not find him in Calcutta as he concealed his presence.
On the basis of the complaint petition and the statement made on oath, cognizance was taken on 28-6-1974. The impugned order of the learned magistrate runs thus:-
Examined the complainant on S. A. Took down his statement. Perused it. I am satisfied that a prima facie case under Section 406, I. P.C. is made out. Congnizance taken of the offence ....
The criminal revision has been filed to quash the impugned order dated 28-6-1974.
2. Mr. Palit for the petitioner urged that even if the entire complaint petition and the statement on oath are accepted as correct, no offence is made out under Section 406, I. P.C. and the impugned order is liable to be quashed as having been exercised without jurisdiction, Mr. B. K. Misra appearing for the opposite party concedes that no offence under Section 406, Indian Penal Code has been made out, but he urges that an offence under Section 420, Indian Penal Code is made out and it is open to the magistrate at a subsequent stage to charge the petitioner under Section 420, I. P.C.
3. On a perusal of the complaint petition and the statement on oath it appears clearly that no offence is made out either under Section 406 or under Section 420, Indian Penal Code. The substance of the story as made out in the complaint is that the petitioner was in difficulty to make payment towards higher charges of two trucks. He approached the complainant for payment of Rs. 3,000/- which he promised to pay back on 27-5-1974. The complaint petition does not make out any criminal animus on the part of the petitioner. Incurring a debt with a promise to pay back within a certain period and failure on the part of the contractor to pay back within the stipulated period does not make it a criminal offence. It is a pure civil liability enforceable through the civil Court. The point is so simple that no authority is necessary. But a decision is available identically on similar facts in : 1974CriLJ352 , (Hari Prasad Chamaria v. Bisbnu Kumar Surekha). Their Lordships held in para 4 of the judgment that there was nothing in the complaint to show that the accused had dishonest or fraudulent intention at the time he took the money. There was also nothing in the complaint petition that the petitioner dihonestly or fraudulently induced the opposite party to part with the money.
4. Section 415, I. P.C. runs thus:-
Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces, the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage of harm to that person in body, mind, reputation or property, is said to 'cheat'.
There is no allegation in the complaint petition or the statement on oath that the petitioner deceived the opposite party, nor there is any allegation that he fraudulently or dishonestly induced the opposite party to part with the money. No offence under Section 420, I. P.C. is therefore made out.
5. Similarly there is no offence under Section 406, I. P.C. Section 405, I. P.C. defines a criminal breach of trust. Giving a loan to somebody for accommodating a person to have money for certain time is not entmstment of money with a direction that the money would be utilised in a particular manner. Failure to pay back a loan or a debt does not amount to dishonest misappropriation of the money or dishonest conversion of the same towards his own use. Doubtless the opposite party was deprived of the money beyond the time during which it was stipulated to be paid back. But inability on the part of the debtor to pay up does not amount to dishonest misappropriation. No offence under Section 406, I. P.C. is also made out.
6. The only other difficulty in the path of the petitioner is whether the High Court would interfere in criminal revision despite the ban imposed under Section 397(2) that interlocutory orders cannot be revised. In Criminal Misc. Case No. 221 of 1974 :Reported in 1975 Cri LJ 1923) (Ori) judgment of which has been delivered today, we have held that where the impugned order is without jurisdiction, it is no order at all even though it is in the form and shape of an interlocutory order. The principle adopted therein has full application to the facts of this case. On our finding that the complaint petition and the statement on oath do not make out any offence, the magistrate had no jurisdiction to issue process to the ex-petitioner for the trial of an offence. The Magistrate gets jurisdiction only when an offence is alleged to have been committed and there being no offence he should have dismissed the complaint petition in limine as it did not make out an offence on the very face of it. The revision is therefore competent.
7. In the result, the impugned order is set aside and the complaint petition is dismissed. The criminal revision is allowed.
8. I agree.