RATNUKAR DASH, J. - (1.) HEARD learned Counsel for the applicants and the learned Additional Government Advocate for the State. None appears for the opposite party No. 2.
(2.) IN this proceeding under Section 482 Cr. P.C. the order dated July 1st, 1996 of the learned Judicial Magistrate -I, Etawah taking cognizance of the offence under Sections 420, 406 I.P.C. is under challenge. The applicants (hereinafter referred to as the 'accused persons') are partners of the firms. M/s Keshari Traders, G.T. Road, Rajganj in the District of Hazari Bagh (Bihar) and they deal in con­sumer goods. Accused Ram Lakhan Prasad, one of the partners, it is alleged, approached the complainant, opposite party No. 2 herein on 1 -8 -1995 and re­quested to supply five truck -load of flour inducing him to believe that price would be paid on receipt thereof. Accordingly, the complainant sent flour on different dates, but received payment only in respect of the first consignment. He requested the ac­cused persons to pay up the balance amount and the same having not been heeded to, led him to file the case which was registered as Complaint Case No. 175 of 1996. The learned Magistrate upon ex­amination of the complainant and the wit­nesses was prima facie, satisfied that a case under Sections 420 and 406 I.P.C. was made out and accordingly took cognizance of the said offences. Learned Counsel appearing for the accused persons contended that a read­ing of the complaint as well as the state­ment of the witnesses including the complainant do not reveal that the accused persons had any intention to deceive the complainant so as to bring the case within the ambit of Section 420 I.P.C. So far as Section 406 I.P.C. is concerned, he urged that even assuming the prosecution as true, it being not the case of the com­plainant that he had entrusted the goods to the accused persons which they dishonest­ly misappropriated or converted to their own use, no offence of criminal breach of trust can be said to have been made out against them. Lastly, he submitted that this being purely a civil dispute criminal proceeding was not maintainable and in support thereof he relied upon a decision of the apex Court in the case ofNageshwar Prasad Singh @ Sinha v. Narayan Singh, 1998 (Vol. XVI) Criminal Rulings 625 ; 1998(2) JIC 1125 (SC).
(3.) WITH the assistance of the learned Counsel for the accused persons as well as the Counsel for the State I have gone through the complaint petition and the statement of the complainant recorded by the Magistrate. On facts, the question arises whether default of the accused per­sons to pay the balance price of the goods would make them criminally liable under Section 420 I.P.C. No doubt, the facts nar­rated in the complaint reveal that it was a commercial transaction between the par­ties but in my opinion, that cannot be sole reason to hold that no offence of cheating has been made out. The complainant, it is alleged, was deceived by accused, Ram Lakhan Prasad and was dishonestly in­duced to send five truck load of flour which he despatched on different dates. But pay­ment was made only in respect of me consignment. This,primafacie, shows that accused Ram Lakhan Prasad had dishonest .intention from the very begin­ning not to make full payment of the price of the goods to the complainant. A similar case like the present one came up for con­sideration before the Apex Court in the case of Rajesh Baiaj v. State, (1999) 3 S.C.C. 259; 1999(1) JIC 722 (SC), as to whether non -payment of the balance amount in a commercial transaction would make one liable for cheating. In the said case, the grievance of the complainant was that he had supplied some garments to the accused, the Managing Director of a foreign company. The garments were received and the payment was promised to be made within a fortnight but when no payment was made a report was lodged to the police on the basis of which a case under Section 420 I.P.C. was registered. The accused approached the Delhi High Court seeking quashing of the criminal proceedings. The Court upon hearing found that there was nothing in the report to suggest that the accused had dishonest or fraudulent intention at the time of ex­port of the goods and consequently quashed the proceedings. The com­plainant then moved the Apex Court and their Lordships in not agreeing with the view expressed by the Delhi High Court held that the commercial transaction or money transaction is hardly a reason for holding that the offence for cheating would allude from such a transaction and in fact many cheating were committed in the course of commercial and money transactions. The law laid down in Rajesh Bajaj, (supra) has been reiterated in a latest decision in the case of Trisuns Chemical Industry v. Rajesh Agarwal, (1999)S.C.C. 686; 1999(2) JIC772(SC).;