Jharkhand High Court

Girdhar Das Agrawal @ G.D. Goyal vs The State Of Jharkhand on 27 April, 2023

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2120 of 2013

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      Girdhar Das Agrawal @ G.D. Goyal               .... Petitioner
                               --  Versus      --
      1.The State of Jharkhand
      2.Pradeep Kumar                                .... Opposite Parties
                                    With
                             Cr.M.P. No. 2180 of 2013
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      1.Goyal Herbal Pvt. Ltd
      2.Amit Agrawal                                 .... Petitioners
                                 --   Versus   --
      1.The State of Jharkhand
      2.Pradeep Kumar                                .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. K.S.Nanda, Advocate For the State :- Mr. Shiv Shankar Kumar, Advocate Mr. V.S. Sahay, Advocate For the O.P.No.2 :- Mr. L.K. Singh, Advocate

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4/27.04.2023 Both petitions are being heard together as the complaint as

well as the order taking cognizance are same in both the petitions.

2. Both these petitions have been filed for quashing of the

order dated 26.2.2013 including the entire criminal proceeding in

connection with Complaint Case No.764 of 2012 under sections 406, 420,

506, 120B IPC, pending in the court of learned Judicial Magistrate,

Ranchi.

3. The complaint case has been filed by the O.P.no.2 alleging

therein that on 27.9.2009 the petitioners and one another person came

to the complainant and requested to be part of M/s Goyal Herbal Pvt. Ltd

as they are ready to appoint him as Super Stockist which is owned by

G.D.Goyal and Vijay Agrawal. On 29.09.2009 the petitioners and one

another came to the business premised of O.P.No.2 and gave format for

appointing as Super Stockist under letter head of M/s Goyal Herbal Pvt.

Ltd along with terms and condition for being Super Stockist and said that

appointment letter will be handed over to him within a week. The said

that the articles will be sold out in market and for which they will assist

him and appoint stockiest and will also make arrangement for sale of

articles. Believing on their assurance the O.P.No.2 paid a sum of

Rs.50,000/- for supply of articles and thereafter articles for Rs.44,507/-

were sent to the O.P.No.2. Thereafter O.P.No.2 paid Rs.4,10,000/- to said

company and against which articles were sent followed by credit notes.

However, on perusal of credit memos and money receipts the O.P.No.2

noticed that signature of authorized signatory of the company was

absent and thereafter they assured to give genuine money receipt and

credit notes. The O.P.No.2 sent legal notice on 26.8.2011 and 22.11.2011

for return of amount and on 17.12.2011 another notice was given but the

amount never returned but no reply of notice was given rather they

threatened O.P.No.2 to implicate in criminal case. It is alleged that the

complainant was cheated by them and caused loss of Rs.6,75,000/-.

Hence this case.

4. The learned counsel for the petitioners submits that there is

business transaction between the petitioners and the O.P.No.2 for

distributorship of herbal articles and the said agreement was entered into

with certain terms and conditions. He submits that business was started

and herbal items were being supplied by the petitioners, however,

O.P.No.2 has not been able to sell the articles and that is why he has

disputed the things and for that complaint case was filed. He submits

that there is no intention of the petitioners from the very beginning of

cheating the O.P.No.2 and in that view of the matter, the entire

proceeding is bad in law considering that for civil wrong, a criminal case

is lodged.

5. Mr. Singh, the learned counsel for the O.P.No.2 submits that

there is allegation against the petitioners and the amount in question was

paid by cheque and inspite of repeated requests the said amount was not

returned and legal notices were also issued and thereafter the complaint

case has been filed. He submits that in that view of the matter, this Court

may not interfere at this stage sitting under section 482 Cr.P.C.

6. Learned counsel for the respondent State submits that

learned court has taken cognizance looking into solemn affirmation and

the evidence of the enquiry witnesses.

7. In view of the above submission of the learned counsel for

the parties, the Court has gone through the contents of the complaint

case as well as the order taking cognizance and finds that in paragraph

no.7 it has been stated that complaint was receiving articles sent by bus

service and at the instance of accused persons from time to time along

with cash memo followed by credit memo sent by courier or post at the

residential address of the complainant which suggest that business has

come in operation and due to certain further dispute, the business was

stopped. It is well settled that every breach of contract would not give

rise to an offence of cheating and only in those cases breach of contract

would amount to cheating where there was any deception played at the

very inception. Paragraph no.7 of the complaint suggest that the articles

were being supplied by the petitioners, thus, from the very beginning the

intention of cheating is lacking in the case in hand. There is no doubt

that if criminality is made out, the criminal case as well as civil case can

go simultaneously, however, if the criminality is not made out and for that

civil wrong is there, to allow the criminal case further will amount to

abuse of process of law. Reference may be made to the case of Vesa

Holding P. Ltd. & Anr. vs. State of Kerala & Ors. reported in [2015

(2) East Cr C 226 (SC)]. Paragraph nos.8 and 9 of the said judgment

are quoted below:

"8. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would

amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.

9. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be -5- available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and the High Court committed an error in refusing to exercise the power under Section 482 Criminal Procedure Code to quash the proceedings."

8. Section 415 of the Indian Penal Code defines cheating and

in order to constitute an offence of cheating the complainant must allege

that there was fraudulent or dishonest intention at the time of making

the promise. The allegations which have been made in the complaint

petition does not go to suggest that there was deliberate or intentional

act of dishonesty on the part of the petitioners from the initiation of the

business transaction. If the intention of cheating is absent from inception

of the transaction the same cannot constitute an offence of cheating

against the petitioner.

9. This Court in a proceeding under Section 482 Cr.P.C. is

required to be circumspect in considering such application as this Court

cannot conduct a roving enquiry or sift through the evidences if the same