HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos.8390 and 11676 OF 2022
COMMON ORDER:
1. Criminal Petition No.8390 of 2022 is filed to quash the
proceedings against the petitioner/A1 in C.C.No.386 of 2018
on the file of Chief Metropolitan Magistrate, Hyderabad for the
offences under Sections 420, 417, 406 and 120-B of IPC. The
2nd respondent is one Chandrakanth Agarwal(A10/1st
petitioner in Criminal Petition No.11676 of 2022).
2. Criminal Petition No.11676 of 2022 is filed to quash the proceedings against the petitioners/A10 to A13 in S.C.No.258 of 2022 on the file of VI Additional Metropolitan Sessions Judge at Secunderabad for the offences under Sections 364, 364A, 365, 352, 368, 109, 120-B IPC r/w 149 IPC and Section 25(1) of the Arms Act, 1959. The 2nd respondent/Rahul Jain is the cousin brother of Sripal Jain (A1 in Criminal Petition No.8390 of 2022).
3. The facts leading to prosecution in C.C.No.386 of 2018 are that Chandrakanth Agarwal, who is the Director of Sri Navdurga Billets Private Limited supplied material to an extent 2 of Rs.1.79 Crores to the petitioner/Sripal Jain-A1. However, only an amount of Rs.50.00 lakhs was paid and Rs.1.29 Crores were due. On the basis of said business transaction, Chandrakanth Agarwal filed criminal complaint on 14.07.2012, which was registered for the offences under Sections 406, 417, 420 and 120-B IPC and the said case was charge-sheeted on 05.07.2018.
4. The said Rahul Jain, who is the 2nd respondent in Criminal Petition No.11676 of 2022 filed complaint on 18.12.2012 alleging that Chandrakanth Agarwal and his sons were suspected of abducting his brother namely Sripal Jain for the alleged outstanding amount of Rs.1.29 Crores. On the basis of such information given, the police investigated the case and found that Chandrakanth Agarwal and his sons had engaged the services of A1 to A9 in S.C.No.258 of 2022, for abducting Sripal Jain. Accordingly, A1 to A9 at the instance of Chandrakanth Agarwal and his sons abducted Sripal Jain and forcibly took his signatures on a blank stamp papers. Aggrieved by the same, complaint was registered and 3 petitioners in Criminal Petition No.11676 of 2022 are arrayed as A10 to A13 and charge sheeted.
5. In both the Criminal Petitions, learned counsel for the petitioners would submit that the cases were outcome of misunderstandings during the course of business transactions. All of them have settled their issues and did not intend to prosecute their cases, as such, prayed to quash the proceedings against the petitioners in the cases registered against them.
6. Further, on the basis of facts also, learned counsel for the petitioners submits that in S.C.No.258 of 2022, the petitioners have been implicated only on the basis of confession of accused. There is no evidence to connect these petitioners in any manner to the alleged abduction. Further, the alleged abduction itself is doubtful in the manner in which it was stated to have happened. None of the witnesses have stated anything about the petitioners that they were complicit in any manner in the alleged abduction that was carried out by A1 to A9. The complaint of abduction is made up for the 4 reason of Chandrakanth/A1 filing a complaint of cheating and misappropriation against Sripal Jain, who is the brother of the defacto complainant/Rahul Jain.
7. In the other case, when the transactions are business transactions and admittedly, an amount of Rs.50.00 lakhs was paid out of Rs.1.79 Crores, which material was allegedly supplied, the question of either cheating or criminal misappropriation does not arise. Both, on the ground of complainants in both the cases not intending to prosecute the cases and settling the issues and further on facts also no criminal case being made out against petitioners, both the Criminal Petitions have to be allowed.
8. To attract an offence of cheating, there should be an element of fraud from the inception in a business transaction. In the present business transaction, material was supplied by Chandrakanth Agarwal to Sripal Jain and out of the said outstanding amount of Rs.1.79 Crores, Rs.50.00 lakhs was already paid. Subsequently, not paying the outstanding for the material received would not in any manner attract an offence 5 of cheating or criminal misappropriation. Failure of contractual obligation in paying the amount gives rise to civil dispute, but it cannot, in any manner be held that the transaction is criminal in nature.
9. The allegation of dishonest intention at the inception is missing in the said business transaction. Subsequent failure to fulfill the obligation of paying the remaining amount towards the goods delivered, will not, in any manner, attract an offence of cheating.
10. In Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168, the Hon'ble Supreme Court held as follows:
"15. 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."
11. In Indra Dalal v. State of Haryana [(2015) 11 SCC 31], the Hon'ble Supreme Court held as follows:
"16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and 6 torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.
17. The word "confession" has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible."
12. In the judgment reported in the case of Dipakbhai Jagdishchandra Patel v. State of Gujarat[(2019)16 SCC 547] the Hon'ble supreme Court held that the basis for framing charge in a criminal trial cannot be confession of an accused.
13. Both on facts, since there is no evidence and also since the parties have buried their differences and do not intend to prosecute, this Court is of the opinion that the criminal proceedings which are pending against the petitioners in both the Criminal Petitions since the year 2012 would only result in wasting of Courts' time when it is known that the parties are not going to depose against one another.
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14. In the result, the proceedings against petitioner/A1 in C.C.No.386 of 2018 on the file of Chief Metropolitan Magistrate at Hyderabad and the proceedings against the petitioners/A10 to A13 in S.C.No.258 of 2022 on the file of VI Additional Metropolitan Sessions Judge at Secunderabad, are hereby quashed.
15. Accordingly, both the Criminal Petitions are allowed. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.
_________________ K.SURENDER, J Date: 18.01.2023 kvs 8 THE HON'BLE SRI JUSTICE K.SURENDER Crl.P.Nos.8390 and 11676 of 2022 Dated: 18.01.2023 kvs