N. K. JAIN, J. - (1.) - This miscellaneous petition is directed against the order passed by the Addl. Sessions Judge, Nagaur dated 12. 9. 83 and the order of Munsif and Judicial Magistrate, Ladnu dated 27. 6. 83.
(2.) BRIEF facts giving rise to this petition are that one Prahalad Rai filed a complint on 19. 10. 82 at P. S. Ladnu alleging that Madanlal had promised him to send for earning to Italy and the petitioner had taken Rs. 15000/- from the complainant. It was also alleged that the petitioner admitted that due to unavoidable reasons he could not send the complainant to Italy and promised to return Rs. 1500/- on demand. And a lkararnama was executed to this effect duly singned by him before two witnesses. On this a case u/s. 420 IPC was registered against the petitioner and was challanged before the learend Munsif and Judicial Magistrate, 1st Class Ladnu, who fra,ed charge against him u/s. 420 IPC on 27. 6. 83, Being aggrieved the accused petitioner filed a revision before the learned Addl. Sessions Judge, Nagaur which was dismissed on 12 9 83 Henee the petitioner has preferred this petition. Mr. B. N. Kalla, learned counsel for the petitioner has submitted that no offence of cheating has been established and the complainant at the mosthe can seek remedy of filing civil suit. He had palced reliance on Hari-prasad V Bishnukumar. (1 ). Mr. S. M. Singhvi, learned Public Prosecutor has opposed this petition and submitted that as per the complaint, it is a clear case of cheating. I have heard Mr. B. N. Kalla, learned counsel for the petitioner and Mr. S. M. Singhvi, learned Public Prosecutor and perused the record. The offence of cheating has been defined in Sec. 515 IPC as under and the offence is punishable u/s. 420. IPC - "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 if he were not so deceived and which act or omission causes or is likely to cause damage to harm to that person in body, mind, reputation or property, is said to cheat. "
(3.) SO far as an offence punishable u/s 420 IPC is concerned, the two essential inercdients are deceitful representation and the delivery of property in consequence there of. It is necessary to establish that the representation was false to the knowledge of the maker at the time it was made and if the representation consists of a promise it must be established that the intention of the promisor was dishonest at the time of making of the promise. Such an intention cannot be inferred from mere fact that the promisor could subsequently fulfil promise. In Hariprasad Vs. Bishnu Kumar, (supra) the appellant had paid a sum of Rs. 35 000/- to the respondent on the basis of the statement of the res- pondents that they would start a transport business and that the appellant went to Calcutta he found that the respondents were doing transport business, but the appellant was not shown as the proprietor of the business and that the respondents had failed to render the accounts of the said business to the appellant and had also failed to refund the money advanced by the appellant. The Sub-Divisional Magistrate took cognizance of the offence under Sec. 420, IPC against the respondent but High Court in exercise of its inherent powers under Section 561 A of the Code of Criminal Procedure 1898, quashed the criminal proceedings on the view that the case of the appellant was based upon contract, and a mere breach of contract could give rise to criminal prosecution and that the appellant had a remedy in the Civil Court. The Supreme Court affirmed the said decision of the High Court and has observed as under :- "there is nothing in the complaint to show that the respondents had dishonest or fradaulent intention at the time the appellant parted with Rs. 35,000/. There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000/- by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be failed. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating. " In the instant case a perusal of the complaint and other papers will show that all that is mentioned that the accused Madanlal took Rs. 15,000/-from the complainant for sending him for earning to Italy. However, the accused petitioner could not send the complainant to Italy and there is no averment in the complainant that the accused deceived the complainant by dishonestly or fradaulently inducing him. As per agreement dated 18. 10. 83 on record in which it has been mentioned that despite his efforts, he took him to other cities and due to unavoidable circumstances he could not be taken to Italy and instead of Italy he was taken to Bulgaria and returned back. In the agreement, it was also mentioned that though there was loss of earning to Prahalad Rai but he will return the amount of Rs 15,000/- on demand. The Ikrarnama was prepared by the petitioner and duly signed by the petitioner in the presence of witnesses Nanu and Gaurishankar. In view of the agreement dated 8. 10. 83 and as the petitioner has not disclosed that he was deceived at the time of representation for taking him to Italy. It appears to be a case of civil nature and no criminal offence u/s. 420 IPC prima facie is made out. Under these circumstances, if proceedings are allowed to continue, it will amounts to abuse of the process of the court and to secure ends of justice the proceedings deserves to be quashed. ;