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Subodh Chandra Shome and ors. Vs. Durga Madhab Das - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Miscellaneous Case No. 213 of 1984
Judge
Reported in1985(II)OLR115
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 482; Indian Penal Code (IPC), 1860 - Sections 420
AppellantSubodh Chandra Shome and ors.
RespondentDurga Madhab Das
Appellant AdvocateDevasis Panda, Adv.
Respondent AdvocateS.P. Misra, Adv.
DispositionPetition allowed
Cases ReferredS. B. Goenka v. Rajendra Prasad Agarwalla
Excerpt:
.....of the complainant taken on their face value, at the most it would be a civil dispute and no offence under section 420 i. if these ingredients are not satisfied then the offence of cheating cannot be said to have been committed......or likely to be caused to the victim in body, mind, reputation, property generally speaking, a criminal offence consists of an act done by the accused with a specific criminal intent or state of mind constituting mens rea. it has been laid down by this court, in s. b. goenka v. rajendra prasad agarwalla, 1982 cri. l. j. 1228 that every breach of contract does not constitute an act of cheating. dishonest intention cannot be inferred from the mere fact that the accused person did not subsequently fulfil the promise. in the absence of materials for the satisfaction of the magistrate that the accused person had any dishonest intention at the time the alleged promise or inducement was made, an offence of cheating cannot be said to have been established. in such cases, the dispute would be.....
Judgment:

G B. Pattnaik, J.

1. The accused persons in complaint case No. ICC. 40/84 are the petitioners who have invoked the inherent jurisdiction of this Court under Section 482, Criminal Procedure Code to quash the order of the Chief Judicial Magistrate, Cuttack, taking cognisance of the offence under Section 420, Indian Penal Code and summoning the petitioners to appear before him. The opposite party filed a complaint before the learned Magistrate alleging that a power of attorney was executed by the petitioners in his favour authorising him to sell some lands belonging to the petitioners and in pursuance of the said power of attorney though the opposite party did negotiate some sale and in fact effected some sale and spent some money for purchase of stamps, the accused persons cheated him in not paying his dues which according to the opposite party amounts to Rs. 10,400/-. On the basis of the said complaint petition and after recording the initial statement of the complainant, the learned Magistrate took cognisance on 8. 2. 1984. The case of the petitioners in this Court is that even if the entire allegations made in the complaint petition as well as the initial statement of the complainant taken on their face value, at the most it would be a civil dispute and no offence under Section 420 I. P. C. can be said to have been established prima facie authorising the Magistrate to take cognisance The learned counsel for the opposite party however contends that all the ingredients of the offence of cheating having been established, it would not be a case where this Court should exercise inherent power to quash the cognisance and the criminal proceeding pending before the Magistrate.

2. The law on the question as to when the High Court should exercise its inherent power has been elaborately and lucidly discussed by this Court in the case of M/s. Lord Match Industries, through its Partner A. Pagalanthi and others v. M. S. Selvasekeran, 55(1983) C. L. T. 24. It is no doubt true, that the inherent power of this Court should be sparingly and cautiously used, but ii all the allegations made in the complaint petition and the initial statement of the complainant taken in entirety without any addition or substraction do not make out the offence, then the Court must exercise its inherent power and quash the cognisance or else it would be a gross abuse of process of law.

3. The necessary ingredients of the offence of cheating are a deception by the accused that deception must emanate from the accused, there must be dishonest: inducement from the accused to the complainant, and believing on such inducement, the complainant parted with some property or valuable security and there must be a criminal intention of the accused when the transaction took place. If these ingredients are not satisfied then the offence of cheating cannot be said to have been committed. I have carefully examined the complaint petition and also the initial statement of the complainant recorded by the learned Magistrate. The sum and substance of the allegations made in the complaint petition are that the accused persons requested the complainant to act as their agent and to negotiate for sale of their land. The complainant did negotiate and finalised the sale. It was further agreed between the accused persons and the complainant that the complainant would purchase necessary stamp paper? and look after the execution and registration of the sale-deed on their behalf and the accused agreed to pay the complainant a sum of Rs. 300/- per month as commission and should also re-imburse all the expenses made by the complainant. Though the complainant did discharge his duties pursuant to the aforesaid agreement between the parties, but when the bill was submitted the accused persons did not pay. There allegations in my opinion, do not make out the offence of cheating as defined in Section 420 of the Indian Penal Code. The dispute between the parties as revealed from the allegations made in the complaint petition, was essentially a matter of breach of agreement between the parties, and is therefore, a dispute purely of civil nature, squarely coming within the law laid down by the Supreme Court in the case of Trilock Singh and others v. Satya Deo Tripathy, A. I. R. 1979 S. C. 850. In a recent decision of this Court in the case of Prafulla Mohanty v. Ashok Kumar Das, 1984 (1) OLR 15, 55(1983) C. L. T. 105, the learned Judge of this Court examined the law on the point and quoted with approval a passage from the earlier decision of this Court in the case of M/s. Lord Match Industries, through its Partner A. Pugalanthi and others v. M. S. Selwasekaran, 55(l983) C L. T. 24 wherein the distinction between 'Breach of Contract' and 'cheating' have been lucidly described in the following words :

'The distinction between mare breach of contract and cheating would depend upon the intention of the accused at the time of the alleged inducement which may be judged by his subsequent act, but of which the subsequent act is not the sole criterion. Mere breach of a contract cannot give rise to a criminal prosecution. Where a charge of cheating rests upon a representation, which is impugned as false and which relates not to an existing fact but to a future event, it has to be shown that representation was false to the knowledge of the accused at the time when it was made. It is but little to the purpose to show that in fact, the representation has turned out to be untrue. An essential ingredient of the offence of cheating is the damage or harm caused or likely to be caused to the victim in body, mind, reputation, property Generally speaking, a criminal offence consists of an act done by the accused with a specific criminal intent or state of mind constituting mens rea. It has been laid down by this Court, in S. B. Goenka v. Rajendra Prasad Agarwalla, 1982 Cri. L. J. 1228 that every breach of contract does not constitute an act of cheating. Dishonest intention cannot be inferred from the mere fact that the accused person did not subsequently fulfil the promise. In the absence of materials for the satisfaction of the Magistrate that the accused person had any dishonest intention at the time the alleged promise or inducement was made, an offence of cheating cannot be said to have been established. In such cases, the dispute would be purely of a civil nature and the proceeding initiated in the criminal Court would be an abuse of the process of the Court.'

After examining the materials on record in the present case, I am firmly of the opinion that the aforesaid observations in M/s. Lord Match Industries case referred to supra and followed in Prafulla Mohanty's case apply with full force and it would be purely a dispute of civil nature relating to the so called agreement or contract between the parties. Consequently allowing initiation and continuation of the criminal proceeding would be an abuse of the process of the Court.

5. In the result, therefore, I would set aside the order of the learned Magistrate dated 8. 2. 1984 taking cognisance of the offene under Section 420 I. P. C. in I. C. C. Case No. 40 of. 1984 and quash the said proceedings pendings in the Court of the Chief Judicial Magistrate, Cuttack.

The Criminal Miscellaneous case is accordingly allowed.


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