RAJKUMAR Vs. JITENDRA RATHI
HIGH COURT OF UTTARAKHAND
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Alok Singh, J. -
(1.) AS per the office report dated 01.07.2009, respondent was served. As per the contents of the complaint, accused/petitioner herein has hired the truck of the complainant from August, 2004; despite repeated demands, petitioner failed to make payment, for hiring of the truck, to the transporter/complainant; cheque issued by the petitioner/accused was also dishonoured for which complaint under Section 138 Negotiable Instrument Act was filed; on the one hand petitioner is not paying the hiring amount yet, on the other hand complainant has been paying installments of truck to the financer, therefore, petitioner has cheated the complainant by not paying hiring amount. Hon'ble Apex Court in the case of Mahesh Chaudhary v. State of Rajasthan and another reported in : 2009 (2) SCC (Cri), 332held that in every case of forgery and fraud, there would always be element of civil nature.
(2.) HON 'ble Apex Court in the case of S. W. Palanitkar v. State of Bihar and another reported in : 2002 (1) SCC, 241 in paragraph No. 23 has held as under:
23. Many a times, complaints are filed under Section 200 CrPC by the parties with an oblique motive or for collateral purposes to harass, to wreck vengeance, to pressurize the accused to bring them to their own terms or to enforce the obligations arising out of breach of contract touching commercial transactions instead of approaching civil courts with a view to realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on the criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on the criminal side when it is clear from the complaint and sworn statement that necessary ingredients of constituting an offence are made out Maybe parties are entitled to proceed on civil side only in a given situation in the absence of an act Constituting an offence but not to proceed against the accused in a criminal prosecution. Hence before issuing a process against the accused in a criminal prosecution, Magistrate has to essentially keep in mind the scheme contained in the provisions of Sections 200 -203 CrPC keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in a routine manner.
Hon'ble Apex Court in the case of Hridaya Ranjan Prasad Verma. State of Biliar and another reported in : 2000 (4) SCC, 168 in paragraph s. 13, 14 & 15 has hold as under:
13. Cheating is defined in Section 415 of the Code as:
415. Whoever, by deceiving any person, fraudulently or dishonesty 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 required -
(1) deception of any person;
(2) (a) fraudulently or dishonestly inducing that person
(i) to deliver any property to any person, or
(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.
(3.) AS per the dictum of Hon'ble Apex Court as reported herein before, learned Magistrate while exercising jurisdiction under Section 202 of Code of Criminal Procedure should satisfy himself as to whether a pure civil dispute has been given colour of the criminal offence to settle the score and to victimize the accused/other parties of the agreement, with a view to realize money at the earliest This Court, while examining the summoning order, ordinarily, should be slow in making interference with the summoning order; however, if this Court, having examined the entire material available on the record and settled principles of law, comes to the conclusion that on the face of it, civil dispute has been given colour of the criminal offence to settle the score and to victimize the other party of the agreement and on the face of it offence of cheating is not made out, this Court must come forward to quash the criminal proceedings.;
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