Telangana High Court
Sanjay Goel vs State Of Telangana And Another on 27 January, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No. 7557 OF 2018
O R D E R:
This Criminal Petition is filed under Section 482 of the Code of
Criminal Procedure, 1973 (for short 'Cr.P.C.') by the
petitioner/Accused to quash the proceedings in FIR No.297 of 2017,
dated 16.12.2017, on the file of Abids Police station. The offence
alleged against the petitioner is under Sections 420 of Indian Penal
Code.
2. Heard learned counsel for the petitioner and learned Assistant
Public Prosecutor for the respondent - State. Perused the record.
3. The brief facts of the case are that the 3rd respondent filed
complaint against the petitioner herein on 16.12.2017 in the Abids
Police Station. According to the complaint, the respondent was
doing the Gem stones Trading Business and the petitioner took
goods for sale. It was orally agreed that 4% commission on the sale
of goods would be paid to the petitioner. However, the petitioner
having received the goods did not return the goods or gave details of
the sold goods. There is an outstanding of Rs.26,87,071/- towards
the goods entrusted.
4. The said complaint was registered. The petitioner approached
this Court and this Court had stayed proceedings in the crime.
5. Learned Counsel appearing for the petitioner would submit
that civil suit was also filed by the complainant vide
OS.No.446/2019. Though, the Civil Court had initially granted
interim stay, however by order dated 16.09.2019 in
IA.No.842/2019, vacated the stay. Thereafter, the suit was
dismissed on 05.08.2024, since the plaintiff/complainant failed to
prosecute the case. Learned Counsel submits that on facts no case
of cheating is made out. It is purely a business transaction which
was already agitated before the Civil Court and the suit was
dismissed.
6. Learned Counsel for the petitioner relied on the Judgment of
Honourable Supreme Court in Hridaya Ranjan Pd. Verma and
others v. State of Bihar and another 1 wherein it is held that;
13. Cheating is defined in Section 415 of the Code as:
"415. 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'.
Explanation.--A dishonest concealment of facts is a deception
within the meaning of this section."
The section requires--
(1) deception of any person;
(2)(a) fraudulently or dishonestly inducing that person
(i) to deliver any property to any person, or
AIR 2000 Supreme Court 2341
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing 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 or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or
property.
14. On a reading of the section it is manifest that in the definition
there are set forth two separate classes of acts which the person
deceived may be induced to do. In the first place he may be
induced fraudulently or dishonestly to deliver any property to any
person. The second class of acts set forth in the section is the
doing or omitting to do anything which the person deceived would
not do or omit to do if he were not so deceived. In the first class of
cases the inducing must be fraudulent or dishonest. In the second
class of acts, the inducing must be intentional but not fraudulent
or dishonest.
15. In determining the question it has to be kept in mind that the
distinction between mere breach of contract and the offence of
cheating is a fine one. It depends upon the intention of the
accused at the time of inducement which may be judged by his
subsequent conduct but for this subsequent conduct is not the
sole test. Mere breach of contract cannot give rise to criminal
prosecution for cheating unless fraudulent or dishonest intention
is shown right at the beginning of the transaction, that is the time
when the offence is said to have been committed. Therefore it is
the intention which is the gist of the offence. To hold a person
guilty of cheating it is necessary to show that he had fraudulent
or dishonest intention at the time of making the promise. From his
mere failure to keep up promise subsequently such a culpable
intention right at the beginning, that is, when he made the
promise cannot be presumed.
7. Learned Counsel relied on the Judgment of Honourable
Supreme Court in Rafeeq Akbani and another v. State of
Telangana 2 it is held that;
"9. As seen from the compliant, the transaction between the
petitioners and the 2nd respondent was a continuous process
over a period of time and payments were made by the
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petitioners when the goods were supplied by the 2nd
respondent. Though an averment is made in the compliant that
subsequently the petitioners have entertained an intention to
cheat the complainant and accordingly did not pay for the
goods supplied, the same cannot be made basis to infer that
the petitioners have cheated the defacto complainant. As held
by the Hon'ble Supreme Court, the test to determine the
intention of cheating can also be from the fact that such
intention should have been entertained right from the inception
of the transaction. When the payments were regularly being
made initially and subsequently for some of the invoices
payment was deferred and cheques were issued, the
ingredients of Section 420 of IPC are not made out. It cannot be
said that there is an act of deception played by the petitioners.
Breach of promise or contract in the present circumstances
cannot be held to be an offence of cheating or criminal
misappropriation punishable under Section 406 of IPC."
8. Learned Counsel also relied on the Judgment of Inder Mohan
Goswami and another v. State of Uttaranchal and others 3.
9. The transaction in between the petitioner and the complainant
was in the normal course of business. Goods were given to the
petitioner and the dispute arose regarding the sold goods. The
averments in the complaint do not make out a case of cheating
since none of the ingredients of Section 415 of Indian Penal Code
are made out.
AIR 2008 Supreme Court 251
10. Further, complainant has filed a suit before the Civil Court
and the suit was dismissed. Though, initially interim orders were
granted in favour of the complainant, however, for reasons stated by
the Civil Court the said interim orders were vacated and thereafter,
the suit was dismissed.
11. Since the transaction is purely civil in nature, the proceedings
against the petitioner cannot be permitted to continue.
12. Accordingly, Criminal Petition is allowed and the proceedings
against the petitioner in FIR No.297 of 2017, dated 16.12.2017, on
the file of Abids Police station, are hereby quashed.
Miscellaneous applications pending, if any, shall stand closed.
_________________
K.SURENDER, J
Date: 27.01.2025
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