M.M.S.T. Chidambaram Chettiar vs Shanmugam Pillai, Head Clerk of A.S. Manickam and Co.

Newsam, J.—This is a petition by a person accused of cheating praying this Court to quash the proceedings against him on the ground that

the complaint discloses no offence.

The inherent jurisdiction of this Court to pass any orders necessary to prevent abuse of the process of any Court is not questioned and indeed

has been clearly expressed in Section 561-A of the Criminal Procedure Code. 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 crimes is one that must

never be shirked. 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 a Criminal Court. Not every

immoral act is criminal and it is an abuse of the process of a Court to attempt to create new crimes in order to compel men to conform to a high

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

The facts of this case are simple:--The petitioner was an owner of motor buses plying for hire from Tanjore to other Places- He used t0 take

petrol and oil on credit from the firm of A.S. Manickam & Co. By the beginning of 1937 he owed this firm over Rs. 3,000. The firm refused him

further credit and threatened to sue. him. On 23rd March, 1937, the petitioner gave the firm a post-dated cheque for Rs. 3,250 (dated 2nd April,

1937). He was not however afterwards allowed any further credit, and had to pay cash for everything. On 5th April, 1937, the firm presented the

cheque at the Bank for encashment, but the cheque was dishonoured. Nothing further happened until more than three months later, namely, on

12th July, 1937, when a clerk of the firm filed a criminal complaint of cheating against the petitioner, setting out the above facts. The Sub-Divisional

Magistrate, Tanjore, took this complaint on file under Sections 415 and 417, Indian Penal Code and sent it to the Stationary Sub-Magistrate,

Tanjore, for disposal, who ordered process to issue to the petitioner.

On 9th August, 1937, A.S. Manickam & Co. filed a suit against petitioner for the sum owed by him and applied for attachment before judgment

of his motor buses.

The petitioner on 20th August, 1937, filed an application asking the Stationary Sub-Magistrate, Tanjore, not to proceed further with the criminal

complaint since no offence was disclosed and since the complaint was filed to coerce, harass and humiliate him. This petition having been

dismissed, the High Court has now been moved.

In my judgment the complaint in question does not on its face show that any criminal offence has been committed. In the offence of cheating

(Section 415, Indian Penal Code) there are two elements--deception and dishonest inducement to do or omit to do something. Let it be assumed

that petitioner deceived and was dishonest. Mere deception is not a criminal offence. Mere dishonesty is not a criminal offence. The crux of the

question in this case is whether A.S. Manickam & Co. were induced by petitioner''s dishonest deception not to file a suit at once against him. On

the facts stated it is clear that they were not. The post-dated cheque was given on 23rd March, 1937 and dishonoured on 5th April, 1937 (an

interval of 13 days). But no suit was filed until 9th August, 1937 (a further delay of 4 months). Moreover, to establish the offence of cheating the

complainant would have to show not only that he was induced not to file a suit for 13 days but that this induced omission on his part caused or was

likely to cause him some harm or damage in body, mind, reputation or property which are presumed to be the four cardinal assets of humanity. The

complaint does not even assert that such harm or damage was caused or was likely to be caused, and it is obvious from the circumstances that no

such harm or damage was or could have been caused. A post-dated cheque in payment of goods already received is a mere promise to pay on a

future date (see H.K. Shaw Vs. Suresh Chandra Mitter, ) and a broken promise is not a criminal offence, though it may amount in certain business

relations to discreditable behaviour.

For the above reasons I allow this petition and quash the proceedings on the ground that no offence has been disclosed by the complaint as

drafted but that it was filed in terrorem. The complaint in question is hereby dismissed u/s 203, Criminal Procedure Code.