- (1.) REJOINDER affidavit filed on behalf of the applicant is taken on record. Heard Mr. Ajal Krishna for the applicant and Sri Dharmendra Singhal for the respondent No.2 and learned A.G.A. for the respondent No.1 and perused the record. This is an application under section 482 Cr.P.C. for quashing the proceedings of Complaint Case No. 167 of 2008 (Oriental Ceramics and Industries Ltd. Vs. Prasanna Kumar Dash) , under section 418 I.P.C., pending in the Court of Chief Judicial Magistrate, Bulandshahar. It appears that the respondent No.2, Oriental Ceramics and Industries Ltd. filed a complaint against the applicant in the Court of Chief Judicial Magistrate, Bulandshahar with the allegations that the applicant entered into an agreement with the respondent No.2 on 26.09.2005, according to which, the applicant was sent to Italy for a training at the expense of the respondent No.2. During the training the respondent No.2 spent a huge amount on the applicant. It is also alleged that the applicant had agreed that he would serve for about three years under the respondent No.2 so that the skill and knowledge acquired by him in the training may be utilised by the respondent No.2 for upliftment of its business but the applicant dishonestly left the job and took away the relevant papers relating to drawing design technology. The learned Chief Judicial Magistrate examined Sri Gurwinder Singh Bhatia, the Deputy General Manager of the respondent No.2 under section 200 Cr.P.C. and also held an inquiry under section 202 Cr.P.C. and recorded the statement of P.W.1 Subodh Sharma. On the basis of the materials collected under section 200 and 202 Cr.P.C. the learned Chief Judicial Magistrate, Bulandshahar passed the order dated 03.04.2008 issuing a process to the applicant in respect of the offence punishable under section 418 I.P.C. Counter affidavit and rejoinder affidavit have been exchanged.
(2.) MR . Ajal Krishna submitted that the dispute between the applicant and the respondent No.2 is of civil nature. If the applicant committed any breach of contract, it was open to the respondent No.2 to file appropriate legal proceedings for recovery of damages, if any, due to the breach. Sri Ajal Krishna further submitted that there is no material to support that the intention of the applicant was dishonest at the beginning of the contract. In fact, the applicant served for several months and then left the job. Therefore, no dishonest intention at the inception of the agreement on the part of the applicant can be inferred. Mr. Dharmendra Singhal, on the other hand, submitted that the applicant, after taking the training, did not serve under the respondent No.2 and join other job, therefore, his intention was dishonest from the very beginning. In the case of V.Y. Jose and another vs. State of Gujarat and another (2009) 3 SCC 78, the Apex Court has held that 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, no offence under section 420 IPC can be said to have been made out. In para 21 and 28 the Apex Court further observed: "21. There exists a distinction between pure contractual dispute of a civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there can not be any doubt whatsoever that in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under section 482 of the Code of Criminal Procedure. ........... 28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject- matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of court. It has a duty in terms of section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts."
(3.) THE aforesaid principles have been reiterated in S.V.L. Murthy vs. State represented by CBI, Hyderabad (2009) 6 SCC 77. In that case the Apex Court has held that one of the ingredients of cheating, as defined in section 415 IPC, is existence of an intention to cheat at the time of making initial promise or existence thereof from the very beginning of formation of contract.;