- (1.) Heard Sri Rajesh Kumar, learned counsel for opposite party No. 2 and learned A.G.A. for the State. By the present application under Section 482 Cr.P.C., the applicant has sought for quashing of the proceedings of Complaint Case No. 726 of 2011 pending in the Court of Judicial Magistrate, Kaimganj, District Farrukhabad, under Section 420 IPC relating P.S. Kotwali Kaimganj, District Farrukhabad. The applicant has also prayed for quashing of the summoning order dated 26.7.2012 passed by the aforesaid Court. According to the complaint case (Annexure 1 to the application), the allegation in nut shell is that under a works contract with the Irrigation Department, whose officer is the accused (applicant), the complainant supplied goods (being machine, etc.) and completed various formalities, but his final bill payment of Rs. 1,19,828/- was not being made on account of which he has suffered mental agony as also financial loss. In the statement recorded under Section 200 Cr.P.C. (Annexure 2 to the application) it has been stated that when the complainant demanded for payment, the accused shouted at him and therefore, it appears that the accused has turned dishonest. In the statement, Rs. 1,05, 250/- has been shown to be due to the complainant. The Court below, on the aforesaid allegations summoned the accused under Section 420 IPC.
(2.) The submission of learned counsel for the applicant is that no offence punishable under Section 420 IPC is made out inasmuch as there is no allegation in the complaint that there was any dishonest intention from the very beginning, which is an essential ingredient for an offence punishable under Section 420 IPC. It has been submitted that even assuming that money required to be paid under the agreement was not paid to the contractor (complainant), it cannot be said that there was dishonest intention on the part of the accused from the very beginning that is since the time of entering into works contract. It has thus been submitted that no offence punishable under Section 420 IPC is made out. It has further been submitted that in absence of any material showing misappropriation of fund, it cannot be said that the applicant committed any offence, particularly when the allegation is not that the applicant made any false promise at the time of entering into the alleged contract.
(3.) Per contra, learned counsel for the complainant submitted that from the complaint allegations it is clear that the complainant was entitled to a sum of Rs. 1,19,828/- from the department but despite all the formalities having been completed, the amount was not paid, therefore, there existed dishonest intention on the part of the applicant. Having considered the submissions of learned counsel for the parties and on perusal of record, this Court is of the view that from a perusal of the complaint as also the statement recorded in support thereof, it is not established, even prima facie, that there existed dishonest intention on the part of the accused from the very beginning that is from the stage when the work contract was entered into between the department and the complainant. Mere failure to fulfill a promise cannot be a ground to draw proceedings for prosecution under Section 420 I.P.C. The essential ingredient for an offence punishable under Section 420 IPC is dishonest misrepresentation on the part of the accused at the time of making promise. In the case of V.P. Srivastava v. Indian Explosives Ltd., 2010 10 SCC 361, the Apex Court held that mere failure to perform the promise, by itself is not enough to hold a person guilty of cheating. It is necessary to show that at the time of making promise he has fraudulent or dishonest intention to deceive or to induce person so deceived to do something which he would otherwise not do. It was observed that such a culpable intention right at the time of entering into an agreement cannot be presumed merely from his failure to keep the promise subsequently. In the instant case it is not established, even prima facie, that there existed dishonest intention on the part of the accused when the contract was entered into between the department and the complainant. Accordingly, the essential ingredient for commission of an offence punishable under Section 420 IPC is not disclosed. In view of the above, proceedings against the applicant amount to abuse of process of Court and to secure the interest of justice, the same deserves to be quashed. The application is allowed. The proceedings of complaint case No. 726 of 2011 pending in the Court of Judicial Magistrate, Kaimganj, district Farrukhabad as also the summoning order dated 26.7.2012 summoning the applicant under Section 420 IPC are hereby quashed.;