Amir Chand vs Lok Nath

Jia Lal Kilam, J.—This is an application u/s 561A of the Criminal P.C., submitted by one Amir Chand for quashing criminal proceedings

pending against him in the Court of the Sub-Judge Magistrate Jammu, The complaint against him has been brought on the following facts:

That Amir Chand entered, into an agreement with the complainant Lok Nath who is a partner of Magotra & Kohji Forest Lessees whereby he

stipulated to supply labour to the complainant. The allegation in the complaint further is that the accused made a false representation that he

possessed means to supply labour and took Rs. 1000/- as an advance for this purpose. In addition to this, he took a further sum of Rs. 1000/- as

advance on 18th Baisakh 2008 and also Rs. 70/-. The complaint further runs that the accused did not possess any labour nor had he ever any

intention to supply it. He simply wanted to cheat the complainant of Rs. 2,070/- thereby causing wrongful gain to himself and wrongful loss to the

complainant. A preliminary statement was taken by the Magistrate in which the complainant simply stated that the accused had stipulated to supply

labour in pursuance of which ha took Rs. 2,070/-, and that the accused did not supply labour as stipulated by him. The trial Court passed an order

that there were grounds to suspect that an offence u/s 420, R.P.C., had been committed and ordered bailable warrants to be issued against the

accused. The accused has now submitted an application u/s 561A, Criminal P.C., praying for the quashing of the said proceedings.

In his application u/s 561A Criminal P.C., the accused has stated that the facts reveal a case of a civil nature but they have been forced to take a

criminal complexion so as to make a criminal Court as an instrument for the recovery of debt or damages for breach of contract. His prayer is that

the proceedings against him be quashed.

That the accused had entered into an agreement with the complainant for supply of labour is admitted by the accused. The simple question

which therefore arises is as to whether the present case is one of a breach of contract or cheating? The main ingredients of an offence of cheating

are that there should be deception of a person so as to fraudulently or dishonestly induce that person to deliver any property to any person or to

consent that any person shall retain any property or intentionally induce 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 to body, mind, reputation or

property. From this it follows that a wilful misrepresentation of a definite fact with intent to defraud would be cheating. Along with this, it has to be

shown ' that the representation made was false to the accused's knowledge at the time when it was made. An act would not come within the

definition of cheating if the representation has turned out to be untrue at a future date.

From this discussion it would become clear that if it can be established that the accused made a false representation at the time when he entered

into an agreement with the complainant, and induced him to part with money, then certainly this act would be cheating. But if the accused changed

his mind at a later date and did not fulfil the contract, it would not be cheating at all. Now in the case before us we find that the accused had made

a representation that he would supply labour to the complainant and in pursuance thereof he got two items of money at two different times. The

complainant also in his statement does not say anything more than that. I think this would not come within the definition of cheating.

In Chidambaram Chettiar v. Shanmugam Pillai AIR 1938 Mad 129 it has been held that

In the world of business, things are often done which are betrayals of confidence and deceptions which arouse moral indignation, but are

nevertheless civil wrongs which can be righted by civil Courts and are not crimes which can be punished by criminal Court. Not every immoral act

is criminal and it is an abuse of the process of a Court to attempt to create a new crime in order to compel men to confirm to a high standard of

probity in business dealings or to force them to execute their promises.

As regards powers of the High Court, in the same judgment we find

Inherent jurisdiction of this Court to pass an order necessary to prevent abuse of the process of any Court is not questioned and-indeed has been

clearly expressed in Section 561-A Criminal P.C. Since prevention is always better than cure, the obligation to prevent specious and spiteful

criminal prosecutions for actions which, though strictly dishonourable, yet do not amount to crime, is one that must never be shirked.

I am in respectful agreement with the enunciation of law made in the above ruling. In the present case all that I can find is a breach of contract

which can by no stretch of imagination be brought within the definition of cheating. If the complainant thinks that a promise has been broken, the

civil Courts are there to help him. But in no case shall the complainant be allowed to make use of a criminal Court for redressing civil wrongs.

Even the trial Court which issued processes was not sure that an offence of cheating was disclosed by facts, as becomes evident from the

words: ""that there is suspicion to hold that an offence u/s 420, R.P.C. has been committed"" which are used in the order of that trial Court issuing

process.

I, therefore, in exercise of the inherent powers vested in this Court order that the criminal proceedings pending against the defendant in this

Court of the Sub-Judge Magistrate Jammu be quashed. I further order that the bail bonds (if any) of the accused be discharged and he. be set at

liberty.