Prem Chand vs Srikant Moheswari

D.P. Sircar-I, J.—In this revisional application u/s 401 read with Section 482 Code of Criminal Procedure the accused-Petitioner submits that the complainant-opposite party lodged a complaint before the learned Sub-Divisional Judicial Magistrate, Barrackpore against him u/s 420 of Indian Penal Code. The learned Sub-Divisional Judicial Magistrate transferred the case to the learned Judicial Magistrate, 3rd Court, Barrack-pore who proceeded to inquire- into the allegation, examined the complainant and issued summons upon the accused-Petitioner at the first instance and thereafter issued warrant of arrest against the accused-Petitioner holding that there was sufficient materials to proceed against him u/s 420 of Indian Penal Code. The aggrieved accused filed this petition before this Court.

What transpired from the complaint is that the accused and the complainant were close relatives and while the accused person lived at Bulandshar Uttar Pradesh, the complainant lived at Belgharia within Barrackpore Sub-division in connection with his service. The accused came to the house of the complainant and in presence of his wife and his sons represented about his business at Bulandshar Town under the name and style as ''Preeti Emporium'' dealing in coarse and medium qualities of cloth. He, however, represented to the complainant about his intention to start a business of manufacturing readymade garments, gave the complainant impression of a very rosy prospect of such a business at Bulandshar. He further represented that the accused already entered into a contact with garments exporter at Delhi, assured the complainant that he would get ready large scale market at Bulandshar and supply readymade garments to the bulk exporters at Delhi and obtain export licence in his own name very soon for which a negotiation was going on. Impressing upon the complainant that there was a rosy prospect of the business, he induced the complainant to make capital investment of a sum of Rs. 2,22,000.00 to establish the proposed business in the nature of joint venture with moiety shares of the complainant and the accused respectively. Taking the representation of the aforesaid accused in good faith the complainant placed reliance on him and as per request of the accused, issued cheques on his bank, namely Bank of India, Kamharhati Branch, on different dates as stated in the complaint, from various accounts standing in the names of the complainant and his sons etc. But even after passage of about seven months the accused did not inform him anything about the business. The complainant felt disturbed and went to Bulandshar on February 1, 1995 to verify the state of affair when the wife of the accused told the complainant that the accused had gone to Delhi in connection with the business and he was making arrangement for establishing business in readymade garments and was likely to go to Bombay also. The complainant requested the wife of the accused to ask the accused to keep himself posted about the progress of the business. But in spite of that the accused did not inform him anything. The complainant went to Bulandshar once again on September 15, 1995, when the accused repeated all kinds of his promises; but it was found that no business was started even then. When even thereafter the accused did not pay any heed or send any information, the complainant went to his house once again on January 24, 1996 and was shocked to know that no step was taken at all to start any such business. It was revealed to the complainant that the accused did never intent to launch any such business. The complaint was lodged stating that the accused cheated him in respect of the sum of Rs. 2,22,000.00.

The learned Magistrate, 3rd Court, Barrackpore examined the complainant on March 14, 1996 and being satisfied prima facie issued summons against the accused person and on receipt of the return issued warrant against him. The accused challenges that order of the Magistrate by filing this revisional application.

The accused submits that none other than the complainant alone was examined u/s 200 Code of Criminal Procedure there was no material to issue process for any offence u/s 420 Indian Penal Code. The Magistrate just acted mechanically without applying his judicial mind and as such it was illegal on his part to issue process. In the complaint there was no material constituting any offence u/s 420 Indian Penal Code. The allegation of attempt on the part of the complainant to start joint venture, non-starting of the business just constituted only a civil liability on the part of the Petitioner and no criminal liability therefor. The accused never refused to return the money and it was a sheer abuse of process to issue warrant of arrest against him. The Petitioner prays for quashing the proceeding.

The complainant-opposite party appears and challenges this contention through his learned advocates.

On behalf of the Petitioner the learned advocate argues that the order dated March 14, 1996 is cryptic and as such illegal. The complaint and the statement of the complainant did not make out any case at all attracting the mischief of Section 420 Indian penal Code. No ingredient of the offence complained against was made out even prima facie. The accused just represented to start a business in readymade garments of his own and he never induced the complainant to advance any money or to acquire any share in any such business. The complainant himself volunteered to join hands with the accused without any inducement on the part of the latter. Non-return of the amount or non-establishment of the business might at best be a civil liability as there was no deception or Cheating on the part of the accused. The learned advocate relies on the ruling in Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Others, Dy. Legal Remembrancer Vs. Ijjatulla Kazi Monoranjan Sinha Vs. Bishamborlal Saboo, and Keshore Deo Goenka Accused Vs. The State and Satyanarayan Dhanuka,

On behalf of the opposite party-complainant the learned advocate points out that accused does not dispute that money was paid by the complainant to the accused person as disclosed in the complaint and that it was never paid back. He argues that both in the petition of complaint and in his statement the complainant categorically stated that the accused person induced him to pay the money assuring him to start business with the complainant as a partner. The accused person did not state anywhere in his revisional application anything was done at all to translate the promise into action. It is, therefore, established prima facie that the accused person did not have any intention to start any business as promised but he was bent from the beginning upon grabbing the money from the complainant. The learned advocate submits that it was a clear case of deception and cheating as the accused deceived the complainant to part with the money with false representation of starting any business. The accused did never have any export licence or readymade garment business even after passage of so long a time. It is not a civil liability and not a breach of trust; it is the clear case of cheating, which did not never attract any civil liability. The learned advocate relies on the ruling in Mushtaq Ahmad Vs. Mohd. Habibur Rehman Faizi and others, State of Himachal Pradesh Vs. Shri Pirthi Chand and another, State of Bihar Vs. Rajendra Agrawalla, In reply the learned advocate for the accused Petitioner submits that at this initial stage we must take the case prima facie and refer to the ruling in Kishore Deo Goenka v. The State Supra and he held no false assurance or inducement.

In the face of a complaint that the accused-Petitioner was a close relative to the complainant and taking the advantage of implicit faith on the accused, the complainants case is that the accused Petitioner exploited the faith of the complainant, on March 14, 1993 called at the residence of the complainant and represented to him that he was well-versed in the business of readymade garments, already entered into contract with some garment exporters at Delhi and assured the complainant that he would get readymade garments manufactured at Bulandshar and supply the same to those exporters and also that he would obtain export licence for which negotiation was already going on and it was stated to the complainant that there was pressing demand of readymade garments from abroad which would be highly profitable, and that the Petitioner induced the complainant to make capital investment to the tune of Rs. 2,22,000.00 to enable the accused to establish the proposed business in joint venture with moiety shares. In support of his contention the complainant examined himself before the learned Magistrate as provided u/s 200 Code of Criminal Procedure. After examination of the complainant the Magistrate passed an order on March 14, 1996 in the term that a prima facie case u/s 420 Indian Penal Code appeared to exist and accordingly he issued processes. The Petitioner accused challenges this order along with the order of the learned Magistrate issuing warrant of arrest against him in consequence of such taking of the cognizance.

I have discussed above the arguments of the contending lawyers and ruling relied upon by them. In the rulings relied upon by the learned advocate for the complainant-opposite party as have noted above it appears that inherent power of the Court u/s 482 Code of Criminal Procedure should be sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or abuse of process of the Court if such power is not exercised. State of Bihar v. Rajendra Agarwala Supra. In the two other rulings relied upon by the learned advocate for the opposite party the same principle has been relied upon and it has been stated that High Court should exercise its inherent power to quash complaint only in rarest or rate cases State of H.P. v. Pirthi Chand Supra and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction. Presumably it means that under this state of affair the Court will have to be very scrutinizing about the Petitioner''s case and consider the complaint and the materials collected by the learned Magistrate on examination of the complainant and the witnesses u/s 200 Code of Criminal Procedure and the fate of the case at this stage will depend on that. This principle is supported by a ruling relied upon by the Petitioner accused as reported in Manoranjan Sinha v. Bishambhorlal Sahoo Supra wherein it has, been stated that--

before doing so, that is, quashing the proceedings the complaint as well as the statements recorded u/s 200 Code of Criminal Procedure should be taken into consideration. If the allegation made in the complaint and also in the deposition recorded u/s 200 are taken at their face value and in their entirety do not constitute the alleged offence, there is jurisdiction for quashing proceedings * * * * * the Court has to peruse the complaint and the initial depositions u/s 200 to decide whether the offence as alleged is disclosed or not prima facie.

Essentially we are to decide the matter on the complaint and the initial statements. The Petitioner is alleged to have committed the offence of cheating the opposite-party. u/s 415 it has been laid down that, whoever, by deceiving any person fradulently or dishonestly induces the person so deceived to deliver any property to any person * * * * * which he would not do or omit if he were not so deceived is said to cheat. The ingredients of the offence, therefore, are (I) inducement to any person to deliver any property etc., (II) with the purpose of deceiving that person, fradulently or dishonestly." The term dishonestly as defined in Section 24 Indian Penal Code is that, whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another is said to do that thing dishonestly and as stated in Section 23 wrongful gain is the gain by unlawful means of property to which person gaining is not legally entitled and wrongful loss is the loss by unlawful means of property to which the person is legally entitled. The next point constituting cheating is inducement for the aforesaid purpose.

In this case the complainant opposite party states in his petition of complaint that the accused-Petitioner called at his residence, depicted a picture of rosy prospect of his business in readymade garments, giving out that he made arrangement for export of such garments, and, in the language of the complaint ''induced the complainant to make capital investment to the tune of Rs. 2,22,000.00 so as to enable the accused person to establish the proposed business in the nature of joint venture with one-half share each''. So the complaint was actually based on an inducement on the part of the accused-Petitioner for delivering into the accused the amount to Rs. 2,22,000.00 in the plea of starting a business in readymade garments and assured him that he was going to make all arrangements for that. There is no dispute that the parties are closely related to each her. The complainant''s case is that the accused took the advantage of implicit faith of the complainant on the accused and proposed to him for the amount. This case is supported by statement of the complainant recorded by the learned Magistrate, wherein the complainant stated that the accused proposed to him for financing the business of readymade garments, but he did never start the business, and, as such, the money was obtained from the complainant dishonestly with a motive to cheat him of that amount, as even on January 24, 1996, that is, about three years after, no business was started and the accused finally refused to return the money and told the complainant clearly that he would not pay the amount back. On this belief and the statement we cannot but hold prima facie that there appears to be a case triable u/s 420 Indian Penal Code. As no other materials have been made available to us, there is nothing to show that even after the process was issued the accused agreed to pay back any part of the amount or that he started any business in joint venture, and, hence, prima facie a good case has been made out for trial u/s 420 Indian Penal Code. Apropos of the ruling relied upon by the Petitioner as reported in Manoranjan Sinha v. Bishambhorlal Sahoo Supra I hold that at this stage the Court will have to take into consideration only the complaint and the statements recorded u/s 200 Code of Criminal Procedure and take the same in their face value and in its entirety to see prima facie if a triable case u/s 420 Indian Penal Code has been made out. By examining the materials on record I hold that it has been made out, there is a fair case for trial of the accused u/s 420 Indian Penal Code and the matter must be decided threadbare by the regular Courts of law. The rulings relied upon by the Petitioner must be distinguished from this case on the question of facts. Clearly in the case reported in the ruling Deputy Legal Remembrancer v. Ijatulla Kazi Supra, the accused person made his best attempt to start the business and there was no element of dishonest deception. So is the case in the ruling reported in Keshore Deo Goenka Accused Vs. The State and Satyanarayan Dhanuka, where there was abundant evidence about earlier transaction between the parties in course of which the relationship was honoured, and, as such, the Court held that there was no incident of criminality in these cases, in the ruling reported in Hari Prasad Chamaria v. Bhusand Kumar Surekha Supra the Hon''ble Court held that there was no dishonest or fradulent intention when the money was parted with to the Petitioner or to indicate that the Respondent had induced the Appellant to pay them the amount parted with. In this case the circumstance is quite otherwise. Further all these cases except the case reported in 1975 Cri.L.J. 1622 were after trial in course of which all the materials were collected and laid threadbare before the Court. The question of revision and consequential quashing at the initial stage and without full facts did not arise in any of those cases.

As I have already said that the statutory power u/s 482 Code of Criminal Procedure has to be exercised sparingly and in rarest of the rare cases.

Under this circumstances I find no reason to interfere at this stage. Revision application is hereby dismissed. Stay order is vacated.

The trial Court is directed to proceed with the matter as per law as early as possible.