Madhya Pradesh High Court
Lucky vs The State Of Madhya Pradesh on 22 November, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 22 nd OF NOVEMBER, 2023
MISC. CRIMINAL CASE No. 39914 of 2022
BETWEEN:-
LUCKY S/O LATE SHRI ASHOK KHANDELWAL, AGED
ABOUT 39 YEARS, OCCUPATION: BUSINESS 43-44 PATEL
NAGAR, UJJAIN (MADHYA PRADESH)
.....APPLICANT
(BY SHRI RAHUL SHARMA, LEARNED COUNSEL)
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
MADHAV NAGAR UJJAIN (MADHYA PRADESH)
2. HARISH SOMANI S/O JUGAL KISHORE SOMANI,
AGED ABOUT 54 YEARS, OCCUPATION: BUSINESS
AMAR SINGH MARG, FREEGANJ, UJJAIN
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHUWAN DESHMUKH, LEARNED GA FOR THE RESPONDENT
NO.1/STATE) (SHRI VIRENDRA SHARMA, LEARNED COUNSEL FOR THE
RESPONDENT [R-2])
This application coming on for admission this day, the court passed the
following:
ORDER
The present petition is filed under Section 482 of Cr.P.C. seeking
quashment of the order dated 12.07.2022 passed in Criminal Revision
No.59/2022 whereby the learned revisional Court has partly upheld the order of
framing of charge under Section 420 of IPC against the applicant in Criminal
Case No.6737/2020 and also seeking quashment of the charge under Section
420 of the IPC and quashment of further proceedings in Criminal Case
No.6737/2020 pending before the Court of CJM, Ujjain.
2. Facts of the case are that a written complaint was lodged by
complainant Harish Somani on 29.07.2020 at Police Station Madhav Nagar,
Ujjain alleging that the applicant had purchased 250 quintal wheat from the
complainant on 10.07.2020. It is alleged in the complaint that he sold said wheat
through invoice No.162388 dated 10.07.2020 amounting to Rs.5,62,500/-. The
applicant did not make the payment. On the basis of the said complaint, a case
Crime No.786/2020 was registered against the applicant under Sections 406 &
420 of IPC. The learned Magistrate framed the charges against the applicant
under Section 420 & 406 of IPC. Being aggrieved by the said order, the
applicant preferred a Criminal Revision No.59/2022 before the Court of
Sessions Judge, Ujjain and the Sessions Judge discharged the applicant from
the charge under Section 406 of IPC, but confirmed the order of framing of
charge under Section 420 of IPC.
3. Counsel for the applicant submits that the charge under Section 420
of IPC has been erroneously framed in the present case. The ingredients of
Section 420 of IPC are not present in the present case. It was a pure civil
transaction between the parties and non-payment or under payment of price of
goods by itself does not amount to commission of cheating or criminal breach
of trust.
4. Counsel for the respondents supports the order impugned and
submits that the ingredients of cheating is present in the case and the applicant
had no intention to make the payment to the applicant. He had issued cheque
which has also been withdrawn and for which a complaint under Section 138 of
NI Act has been filed.
5 . To appreciate the rival submissions of the parties, it is apposite to
reproduce the provisions of Section 420 of IPC as under:-
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.
6 . From reading the aforesaid provisions of Section 420 of IPC, it is
manifest that there has to be a dishonest intention from the very beginning,
which is sine qua non to hold the accused guilty for commission of the said
offence. In this regard, a reference may be made to the judgment passed by the
Apex Court in the case of Joseph Salvaraj v. State of Gujarat, AIR 2011 SC
2258. The offence of cheating is established when the accused thereby induced
that person to deliver any property or to DO or to omit to do something which
he would otherwise not have done or omitted. A reference to the made
judgment passed by the Apex Court in the case of Mahadeo Prasad vs. State
of Bengal, AIR 1954 SC 724.
7. On the anvil of the aforesaid case law, if the complaint of the present
case is examined, it is manifest that there was an oral agreement between the
parties for purchase of wheat and payment of price of the said goods, the
applicant had issued the cheque towards the payment of the said price,
however, the same was dishonoured. There is no material to indicate that the
applicant had intention to cheat the applicant. The dishonest intention from very
beginning is most essential ingredient of Section 420 of IPC which is lacking in
the facts of the present case. In the case of Vir Prakash Sharma vs. Anil
Kumar Agarwal & Anr. (2007) 3 SCC (Cri) 370 , the Court held that where
the allegations contained in complaint petition even if given face value and taken
to be correct in its entirety do not disclose an offence, the complaint can be
quashed under Section 482 of Cr.P.C. The Apex Court held that non-payment
or underpayment of price of goods by itself does not amount to commission of
offence of cheating or criminal breach of trust. It is essentially a civil dispute.
Merely because the accused issued cheques which got dishonoured, the same
by itself would not mean that he cheated the complainant.
8. In the present case also there is no allegation as to act of inducement
on the part of the accused and intention to cheat the complainant from the very
inception. The same view has been reiterated by the Apex Court in the case of
G. Sagar Suri & Anr. vs. State of UP & Ors. 2000 SCC (Cri) 513.
9. In view of the aforesaid facts and enunciation of law, I find that a case
is made out for quashment of the impugned order dated 12.07.2022 passed in
Criminal Revision No.59/2022 and the charge framed against the applicant
under Section 420 of IPC in Criminal Case No.6737/2020 pending before CJM
Court, Ujjain is quashed.
10. It is made clear that any observation made in this order would not
affect the proceedings under Section 138 of NI Act.
11. With the aforesaid, the present petition is disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
