N.P. Chhabaria vs Jyoti Wire Industries And Ors.
2002 Latest Caselaw 846 Bom

JUDGMENT

J.G. Chitre, J.

1. Mrs. Rama S. Pendkalkar for the petitioner None for other respondents except State of Maharashtra which has been represented by Ms. Kantharia. Therefore, this Court heard both the counsel appearing for the petitioner and the State of Maharashtra.

2. The Petitioner is hereby assailing the correctness, propriety and legality of the order passed by the trial Court whereby a process was issued against him in context with some offences including an offence which is punishable under the provisions of Section 420 of IPC.

3. After presentation of the complaint, at the time of taking the cognizance the trial Court has to advert its attention to the fats and circumstances indicated by the averments made in the complaint. It has to inform itself about the allegations made in the complaint. The facts and circumstances of the case differ from case to case. Therefore, the provisions of law have to be applied to such case presented before it by reading the allegations carefully.

4. Mrs. Pendkalkar submitted that the petitioner was the director of a private limited company i.e. Respondent No. 1 for only two months when the agreement in question was dealing with entire term of four months and, therefore, he cannot be said to have committed the act of cheating by any stretch of imagination. She submitted that the trial court lost the sight of this important aspect of the matter and, therefore, landed in error in issuing the process against the petitioner which needs to be quashed by this court by exercising the powers in view of Section 482 of Criminal Procedure Code. Ms. Kantharia pointed out the contents of paragraphs 2, 3, 4, 5 and 6 and submitted that the petitioner was the person who has previous agreement with the complainant company and he by giving some promise or inducement induced complainant company to enter into an agreement with respondent No. 1. She further submitted that on his promises, on his advice and at his inducement the complainant company entered into an agreement with respondent No. 1 and, therefore, the learned Magistrate has rightly concluded that there is a prima facie case made out for issuing process. She submitted that the present writ petition be dismissed.

5. While dealing with the offence of cheating, the provisions of Section 415, 417 and 420 will have to be read together. More attention will have to be given to the phraseology used in these sections. If Section 415 of IPC is considered, it blossoms out various ingredients which need to be considered by a criminal court mainly as "fraudulently", "inducement", "promise", "dishonestly", "wrongful gain" and "wrongful loss". It will have to be prima facie ascertained whether the promises or inducement were given by the alleged accused which prompted the complainant to act on it believing it to be true. Thereafter it will have to be also seen whether the complainant had acted on it and after acting on it, whether he has suffered a wrongful loss. It has to be seen whether the acts alleged to have been done by the alleged accused were with the intent of acting fraudulently. The sting of dishonesty has to be noticed during this process. After such process is followed by application of judicial mind, the Court would be in position to come to a prima facie conclusion whether prima facie case has been made out which, if not rebutted, would warranted a convicting. After this process only, the Court can take the cognizance of the complaint presented before it and may decide to issue process for calling the alleged accused to appear before it enabling it to conduct further enquiry into the matter of the complaint presented before it. It may be in accordance with the procedure prescribed for summons cases or it may be in accordance with the procedure prescribed for conducting the trials of warrant cases.

6. After the Court makes the enquiry by examining the complainant and the witnesses presented by the complainant, the Court would be in a position to make out its mind for a necessary adjudication whether the case presented before it is fit to be inquired further or whether the accused deserves to be discharged, or acquitted as the case may be.

7.No far as the present order which has been assailed by this petition is concerned, this Court is satisfied that there is no need of exercising its inherent powers for quashing the said process and the order of taking the cognizance of the said complaint. This Court does not express any opinion further and allows freedom to the trial Court to come to the conclusion whether the accused deserves to be discharged after recording the evidence of witnesses and coming to the stage of going for adjudication whether charge should be framed or whether the accused should be discharged.

8. Thus, the petition stands dismissed. The petitioner should appear before the trial Court and he is at liberty to make an application for discharge if the occasion arises after recording the evidence of some witnesses "before charge stage". Rule stands discharged.

9. Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.