Jammu & Kashmir High Court

Jitendra Guha vs M/S K. C. Hotels Pvt. Ltd on 23 November, 2021

                                                                Sr. No. 3



       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                                 CRMC No. 280/2013
                                                 IA No. 337/2013

Jitendra Guha                                            .....Appellant/Petitioner(s)

                                Through :- Mr. A. P. Singh, Advocate

                          v/s

M/s K. C. Hotels Pvt. Ltd.                                        .....Respondent(s)

                                Through :- Mr. S. K. Anand, Advocate


Coram:      HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                   ORDER

1. The present petition has been filed by the petitioner under section

561-A Cr.P.C (now 482 Cr.P.C) for quashing the proceedings in

the criminal complaint titled „M/s K.C. Hotels vs. Jatinder Guha‟

for commission of offence under section 420 RPC, pending before

the court of learned Special Mobile (Passenger Tax and Shops

Act) Magistrate, Jammu (hereinafter to be referred as trial court)

and also for quashing the order dated 07.09.2013 by virtue of

which, learned trial court has issued the process against the

petitioner.

2. The main ground on which the present petition for quashing the

criminal proceedings and also the order of issuance of process

against the petitioner has been filed is that there was civil dispute

between the respondent and the petitioner. The respondent in

order to harass and pressurize the petitioner to succumb to the

unjustified demands of the respondent, has given a criminal colour

to the same and also ingredients of section 420 RPC are missing in

the complaint.

3. Learned counsel for the petitioner reiterated the submissions made

in the petition.

4. Per contra, Mr. S. K. Anand, Advocate submits that the

correspondence between the parties would demonstrate that the

intention on the part of the petitioner was to cheat the respondent.

5. Heard and perused the record.

6. Before appreciating the rival contention of the parties, it is apt to

have brief note of the allegations leveled in the complaint. As per

the allegations contained in the complaint, the petitioner

approached the respondent for placing the order for supply of (i)

LED LINER WALL WASHER NE WLL 9 W (BLUE) and (ii)

LED IN GROUND LIGHT (NE ING 3W) 300 K (WARM

WHITE). It is alleged that acting on the assurance of the petitioner

with regard to the quality of the articles, the respondent placed the

order with the petitioner for supply of aforementioned two items.

After the above mentioned product was received by the

respondent, the same was found to be inferior in quality as within

few days, the product LED LINER WALL WASHER got fused

and stopped working. Thereafter, the respondent contacted the

petitioner and the petitioner told the respondent to send back the

product and the same shall be repaired at their level and will be

sent back in workable condition. Accordingly, the said product

was sent to the petitioner who again dispatched the same but it did

not work again. After, the receipt of the items, correspondences

ensued between the parties with regard to the non-workability of

the product supplied by the petitioner and the petitioner had been

extending the assurances with regard to the cancellation of the

order and refund of the amount received by him. The respondent

has given the details of the amount paid by it to the petitioner and

also the details of the Sales Tax/Entry Tax paid by the respondent

to the Commercial Tax Department, J&K Government. It further

transpires that the respondent even served the legal notice to the

petitioner and the same was replied by the petitioner and the

petitioner falsely projected before the respondent about the best

quality of the products that in fact was not true. In this manner, the

main allegation against the petitioner is that he has cheated the

respondent for an amount of Rs. 4.00 lacs.

7. From the record, it is evident that sole grievance of the respondent

is with regard to the alleged defective products supplied by the

petitioner. It also transpires that the petitioner himself told the

respondent to send back the defective products for its repairing,

however, the said product was again sent to the respondent but the

same did not function properly.

8. So far as offence under section 420 RPC is concerned, the Apex

Court in R. K. Vijayasarathy v. Sudha Seetharam, reported in

(2019) 16 SCC 739, the Apex Court has observed:

"15. Section 415 of the Penal Code reads thus:

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any

person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."

16. The ingredients to constitute an offence of cheating are as follows:

16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:

16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.

18. Section 420 of the Penal Code reads thus: "420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

20. Cheating is an essential ingredient for an act to constitute an offence under Section 420.

19.2. The person cheated must be dishonestly induced to

(a) deliver property to any person; or

(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.

23. The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17-2-2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out."

9. If the complaint of the respondent is tested on the parameters of

law laid down by Apex Court in judgment (supra), I am of the

considered opinion that the very foundation for the commission of

offence under section 420 RPC i.e. dishonest inducement is

absolutely missing, as such no offence under section 420 RPC is

made out. The respondent could have resorted to the other remedy

as available under law but in no manner it could have resorted to

criminal proceedings and it seems that respondent has taken

recourse to criminal proceedings in order to get back the money

from the petitioner.

10. In view of what has been discussed above, the proceedings arising

out of criminal complaint titled „M/s K.C. Hotels vs. Jatinder