Delhi High Court
Ajay Dhir vs State And Anr. on 8 March, 2007
Author: S R Bhat
Bench: S R Bhat
JUDGMENT
S. Ravindra Bhat, J.
1. The Petitioner claims to be aggrieved by an order dated 26.11.2006, framing charges offences punishable under Sections 406 and 420, Indian Penal Code (IPC).
2. As per the informant/complaint, a jeweller, sometime in end April, 2005, the Petitioner visited his shop, introduced himself as a senior functionary of Bharatiya Janta Party, and expressed a desire to buy jewellery for the marriage of his brother-in-law, who had come from Canada, and to promote business in Delhi and Canada. The Petitioner allegedly convinced the complainant, and took jewellery worth Rs. 2,00,000/-. He gave ornaments of about Rs. 70,000/- and two cheques for Rs. 1,25,000/-. The next day, the Petitioner asked some more jewellery to be taken to his place, which was done; jewellery worth Rs. 11 lakh was accordingly handed over. Despite repeated requests, neither jewellery was returned, nor was any amount paid; the Petitioner gave post dated cheques for Rs. 9.45 lakhs. All the cheques were dishonoured.
3. Mr. Vijay Agarwal, learned Counsel contended that the FIR, and chargesheet nowhere justified an order on charge, as issued by the trial court. According to him, the transaction was, purely a commercial one, with no element of criminality attributable to the Petitioner. It was urged that the offence of cheating was not made out since dishonest intention was absent, as was apparent from the fact that the Petitioner gave jewellery worth Rs. 70,000/- and cheques for Rs. 1.25 lakh. If dishonest intention is absent, there was no inducement within the meaning of Section 415/420 IPC.
4. Counsel relied upon the judgment reported as Alpic Finance Ltd. v. P. Sadasivan and Anr.; Hridaya Ranjan Prasad Verma v. State of Bihar 2000 Cri.LJ 2983 and the Division Bench Judgment of this Court in Uniplus India Ltd. v. State and Anr. 2002(2) JCC 977, for the submission that deception of a person to fraudulently and dishonestly entice him to deliver property, must be present from the beginning. He, therefore, contended that in this case the complaint and all the materials pointed to a bonafide commercial transaction; had it been otherwise, the petitioner would not have parted with any jewellery or even the cheques.
5. Counsel also contended that the necessary ingredient for making out an offence under Section 406, was not made out and that on the other hand, the case involved dishonour of cheques, for which independently proceedings under Section 138 Negotiable Instruments Act were availed of.
6. Learned Counsel lastly contended that this is an appropriate case for applying the ratio of the judgments delivered by the Supreme Court in G. Sagar Suri and Anr. v. State of U.P. and Ors. and Hotline Teletubes & Components Ltd. and Anr. State of Bihar and Anr. 2005(10) SCC 261, i.e wherever the transactions and the acts complained of, are indicative of civil disputes, the parties should be left to avail their remedies through civil Courts.
7. The arguments as presented, particularly in the light of the decisions, appear to be attractive. The complainant, as per the allegations parted with jewellery and ornaments worth nearly Rs. 13 lakhs. The petitioner in return is said to have given jewellery worth Rs. 70,000/- and also issued cheques. At this stage, the Court has not considered all the submissions i.e the defense of the petitioner. It has considered the materials and framed charges. These included recoveries effected and duly identified by the complainant. The recoveries were of the gold articles and ornaments said to have been made over by the complainant to the petitioner. As on date, the materials and evidence also indicate that the cheques issued were not honoured. Therefore, I am not persuaded by the submission that the petitioners had no intention of cheating or criminally misappropriating the jewelly and other valuables handed over to them. As to whether the intention to cheat, or dishonesty existed on the date of the transaction or manifested itself later or that the property or goods were entrusted and subsequently misappropriated so as to constitute criminal breach of trust and the quality of the materials are matters which would be best left for consideration at the trial. The Court has to merely consider whether there is material on record amounting to, prima facie, grave suspicion, about guilt of the accused. To that extent, I do not see any infirmity in the order of the trial Court and the charges framed.
8. In view of the above reasons, this petition is meritless and is accordingly dismissed subject to the payment of costs quantified at Rs. 5,000/-, which shall be deposited by the petitioner with the Delhi High Court Legal Services Committee within four weeks.
