Khushalrao Pundlikrao Kamble And ... vs The State Of Maharashtra, Thr. ...
2021 Latest Caselaw 4489 Bom

                                                                         1                        Cr.APL No.599.16-J

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                    CRIMINAL APPLICATION (APL) NO.599 OF 2016

  1.       Khushalrao Pundlikrao Kamble,
           Aged 67 years, Occ. - Retired,
           Tapovan Complex, Amravati.

  2.       Jyoti Khushalrao Kamble,
           Aged 35 years, Occ.- LPC Amravati,
           South of Maltakadi, Amravati.                                                        ....APPLICANTS


                                    ----- VERSUS -----


  1.       The State of Maharashtra,
           Through Police Station Gadgenagar,
           Amravati.

  2.       Bharat Vishwanath Harne,
           Aged 35 years, Occ.-Contractor,
           Rahul Nagar, Bicchutekdi Camp,
           Gadge Nagar, Amravati.                                                   .... NON-APPLICANTS
  ________________________________________________________________
  Shri Mir Nagman Ali, Advocate for the applicants.
  Shri S. D. Sirpurkar, A.P.P. for the non-applicant No.1/State.
  Ms. D. V. Sapkal, Advocate (Appointed) for non-applicant No.2.
  _________________________________________________________________________________________________________________________________


                         CORAM : Z. A. HAQ AND
                                                 AMIT B. BORKAR, JJ.

                         DATE            :       11.03.2021.

 ORAL JUDGMENT : [PER: AMIT B. BORKAR, J.]

  1.                     Heard.

2. By this application under Section 482 of the Code of

Criminal Procedure, the applicants have challenged registration of

the First Information Report No.529/2016 registered with the non-

applicant No.1-Police Station for the offence punishable under

Section 420 read with Section 34 of the Indian Penal Code.

3. The First Information Report came to be registered

against the applicants with the accusations that the non-applicant

No.2 is in business of construction and takes contract for centering

work. It was alleged that the non-applicant No.2 completed the

work of applicants as per contract and hence, submitted total bill of

the Rs.2,38,500/- for work done by the non-applicant No.2. It is

alleged that out of said bill, the applicants paid an amount of

Rs.88,500/- to the non-applicant No.2 but the applicants refused to

pay an amount of Rs.1,50,000/- to the non-applicant No.2. The

non-applicant No.2 therefore, filed an application with the

Superintendent of Police and after the intervention of the

Superintend of Police, the First Information Report came to be

lodged against the applicants. The applicants have therefore,

challenged registration of the First Information Report by filing the

present application.

4. This Court on 25.08.2016 issued notice to the non-

applicants and directed that no coercive steps shall be taken against

the applicants. This Court on 05.01.2017, issued Rule and stay

further proceedings in relation to the investigation.

5. The non-applicant No.1 has filed reply stating that

Investigating Agency recorded statements of complainant and other

labourers, who worked with the non-applicant No.2. It is stated

that the witnesses categorically stated about the threats hurled by

the applicants and duping the non-applicant No.2 of his right full

bill amount. It is therefore, stated that there is sufficient material

against the applicants and the application deserves to be dismissed.

6. The non-applicant No.2 has also filed reply and has

stated that the applicants have intentionally failed to pay amount to

the non-applicant No.2. From the averment in the complaint, it is

stated that the essential ingredients of the offence under Section

420 of the Indian Penal Code are fulfilled.

7. Ingredients of cheating are:

(i) deception of a person either by making a false or misleading representation or by other action or omission; and

(ii) fraudulent or dishonest inducement of that person to either deliver any property to any person or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act of omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

A bare perusal of Section 415 read with Section 420 of

the Penal Code would clearly lead to the conclusion that fraudulent

or dishonest inducement on the part of the accused must be at the

inception and not at a subsequent stage.

8. We have carefully considered the allegations in the

First Information Report. From the allegations in the First

Information Report, we do not find any material that at the

inception of the contract, there was dishonest intention on the part

of the applicants not to pay amount to the non-applicant No.2.

There is no material produced alongwith the First Information

Report nor there is any statement by witnesses that at the inception

of the transaction between the applicants and the non-applicant

No.2, there was dishonest intention on the part of the applicant not

to pay said amount. It appears from the record that though the

work which was done by the non-applicant No.2 was of

Rs.2,38,500/-, the applicants have undisputedly paid an amount of

Rs.88,500/- to the complainant. The said fact shows that at the

inception, there was no dishonest intention on the part of the

applicants not to pay said amount to the non-applicant No.2. In

absence of the said essential ingredients, we are satisfied that the

registration of the offence against the applicants under Section 420

of the Indian Penal Code were not proper. We are therefore,

satisfied that the continuation of the present proceedings against

the applicants would amount to abuse of process of Court.

9. We therefore, pass the following order.

The First Information Report No.529/2016 registered

with the non-applicant No.1-Police Station against the applicants for

the offence punishable under Section 420 read with Section 34 of

the Indian Penal Code is quashed and set aside.

Rule is made absolute in the above terms.

                                          JUDGE                           JUDGE




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