Vibha Kankanwadi JUDGMENT
Vibha Kankanwadi, J.
1. Rule. Rule made returnable forthwith and the matter is heard finally at the stage of admission.
2. Present petition has been filed by original accused, challenging the order of issuance of process against him for the offence punishable under Section 406 and 420 of Indian Penal Code, by learned Judicial Magistrate First Class, Latur in R.C.C. No. 459 of 2015 on 28-07-2017; which was confirmed in Criminal Revision Application No. 19 of 2018 by learned Additional Sessions Judge-1, Latur on 03-01-2019.
3. Heard learned Advocate Shri. M. M. Patil for petitioner, learned Advocate for respondent No. 1 and learned APP for respondent No. 2.
4. It has been vehemently submitted on behalf of petitioner that both the Courts below have not considered the contents of the complaint and the ingredients of the offences under which process has been issued. Contents of the complaint, verification, etc would show that complainant was harping upon the contract that had taken place between the Company and accused. The correspondence that was exchanged ought to have been considered. It has been alleged that the accused was not providing work as per the terms of contract. Some amount was paid by accused to the complainant, so also some material was also provided. If there would have been intention to cheat since inception, then these things would not have taken place. Complainant says that amount of Rs. 10,00,430/- is due and payable from accused; but accused avoided on one or the other pretext. This is nothing but civil transaction, for which remedy under criminal law is not available. Both the Courts ought to have considered that criminal action was not warranted and ingredients of the offences punishable under Section 406 and 420 of Indian Penal Code were not made out. A cryptic order has been passed by learned Magistrate; whereas the learned Additional Sessions Judge, failed to correct the same in his revisional powers.
5. In order to buttress his submissions, learned Advocate for petitioner has relied on the decision in Dalip Kaur v/s. Jagnar Singh and Anr. [MANU/SC/1139/2009 : AIR 2009 SC 3191]; wherein it has been held that, "Fraudulent or dishonest intention at the time of making promise or representation is necessary to constitute offence of Criminal breach of trust or cheating. Pure and simple breach of sale does not constitute those offences". Further reliance was placed on the decision in Surendra Shivshanker Choudhari v/s. Vishwanath Shivshanker Choudhari and Another [MANU/MH/4618/2017 : 2018 (3) Bom C.R. (Cri.) 119]; wherein on the facts of the case this Court at Principal seat held that there was nothing on record to suggest that there is an element of instituting proceedings.
6. Per contra, the learned Advocate for respondent No. 1 supported the orders passed by both the Courts below and it was submitted that the accused had no intention to make payments since beginning. On the say of accused, the complainant had shifted its material to Parali, Ambajogai and Osmanabad. On the basis of representations made by the accused, work was done and even the labours were employed. Huge amount was due and payable by the accused to the complainant. Every time when the demand of the amount was made, it was avoided by accused on one or the other pretext. This amounts to cheating and criminal breach of trust. Though there was a contract betwee........