High Court of Allahabad

Vivek Kumar Singh Vs. State of U.P. and Ors.

MANU/UP/2234/2018

31.05.2018

Criminal

Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at beginning of transaction

Present application under Section 482 of Code of Criminal Procedure, 1973 (CrPC) has been filed for quashing the summoning order passed by Additional Chief Judicial Magistrate, passed in Complaint Case under Section 406, 420, 467, 468 of Indian Penal Code, 1860 (IPC), as well as entire proceeding of the case. Opposite Party-2 lodged an FIR under Section 406, 420 IPC. Magistrate by order rejected the final report and permitted the complainant to treat FIR as complaint case and registered it as Complaint Case. Magistrate vide order found that, the complaint and the evidence disclosed offence and summoned the accused, named in FIR. Hence, present petition has been filed.

Supreme Court in Hridaya Ranjan Prasad Verma v. State of Bihar, has held that on a reading of the Section 415 of IPC it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place, he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.

A perusal of the allegations made in the FIR as well as statements of witnesses, shows that, it discloses commission of the offence and cannot be said to a dispute of civil nature only. Magistrate has not committed any illegality in passing summoning order, and taking cognizance in the case.

Section 181(4) of CrPC provides that, offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to the offence was received or retained, or was required to be returned or accounted for, by the accused person. Allegation in the FIR and statements of the witnesses was that money deposited in Bank account of Union Bank of India, Godauliya Branch, Varanasi, was misappropriated by the accused without her consent and knowledge. Varanasi Court has jurisdiction to try the offence in this respect. Whether the applicant had connived for committing offence with main accused is a question of fact and could be decided after taking evidence. Entire proceeding of criminal complaint is not liable to quashed at this stage. Charge in respect of obtaining gift deed fraudulently would be framed separately under Section 218 of CrPC. It would be open for the Applicant to raise question of jurisdiction to try that charge. However at this stage, it cannot be said that entire proceeding before Additional Chief Judicial Magistrate, Varanasi, is without jurisdiction. Entire proceeding of Complaint under Section 406, 420, 467, 468 of IPC, is not liable to be quashed. The application under Section 482 of CrPC is dismissed.

Relevant

Hridaya Ranjan Pd. Verma & Ors. vs. State of Bihar and AnotherMANU/SC/0223/2000

Tags : Misappropriation Proceedings Quashing of

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