Asha Arora, J
The petitioners have approached this Court under section 482 of the Code of Criminal Procedure for quashing of the proceeding of GR Case No. 1805
of 2014 arising out of Taltala P.S. Case No. 242 of 2014 dated 26/12/2014 under section 420/120B of the Indian Penal Code pending before the
learned Metropolitan Magistrate 20th Court Calcutta.
The facts in brief leading to the present application may be summarized as follows:
The opposite party no. 2/complainant lodged a written complaint dated 24/12/2014 at Taltala P.S. against the petitioners alleging commission of
offence under section 420/120B. On the basis of the aforesaid complaint the above mentioned criminal proceeding was initiated. Investigation
culminated in the submission of the charge-sheet under section 420/120B IPC against the petitioners wherein it is alleged that on 18/10/2014 the
accused persons dishonestly induced the complainant to deliver stock of IMFL and beer to M/S Luxamee Kutir Udyog Liquor Division and after
receiving the same, they neither paid the bill amount of Rs. 8,18,304/- nor returned the stock to the complainant. The accused issued four cheques to
the complainant which were dishonoured due to insufficient fund.
Learned counsel appearing for the petitioners argued that the ingredients of the offence alleged are not disclosed. There was continuous business
transaction between the parties. The offence of cheating involves dishonest intention from the inception of the transaction. Mere non payment of the
amount alleged for a single transaction does not make out the offence of cheating. Learned counsel sought to impress that a civil suit for recovery of
dues or a complaint case under section 138 of the Negotiable Instruments Act would have been an appropriate remedy. To fortify his argument,
learned counsel for the petitioners placed reliance on the following case laws:
1. Dr Sharma’s Nursing Home versus Delhi Admn. And Others reported in (1998)8 Supreme Court Cases 745.
2. Medchl Chemicals & Pharma (P) Ltd. versus Biological E. Ltd. and Others reported in (2000)3 Supreme Court Cases 269.
3. G. Sagar Suri and Another versus State of U.P. and Others reported in (2000)2 Supreme Court Cases 636.
4. Hotline Teletubes and Components Ltd. and Others versus State of Bihar and Another reported in (2005)10 Supreme
Court Cases 261.
5. Vir Prakash Sharma versus Anil Kumar Agarwal and Another reported in (2007)7 Supreme Court Cases 373.
6. Anil Mahajan versus Bhor Industries Ltd. and Another reported in (2005)10 Supreme Court Cases 228.
7. V.P. Shrivastava versus Indian Explosives Limited and Others reported in (2010)10 Supreme Court Cases 361.
8. R.K. Vijayasarathy and Another versus Sudha Seetharam and Another reported in 2019 SCC Online SC 208.
Learned counsel for the opposite party no. 1/State countered that the allegations set out in the complaint and the material collected during investigation
make out a prima facie case disclosing the ingredients of the offence alleged. It is argued that there is no legal bar to the institution of a criminal case
under section 420 IPC if a complaint under section 138 of the Negotiable Instruments Act is not filed. Learned counsel contended that even during the
pendency of the proceeding under section 138 of the Negotiable Instruments Act, prosecution under section 420 IPC can be launched since the
ingredients of the offence are entirely different. It has further been canvassed that the factual issues are matters to be decided by the trial Court. At
this stage the complaint has to be examined as a whole without going into the merits of the allegations made therein. It is sufficient if the allegations in
the complaint on the face of it constitute the offence alleged. To buttress his argument learned counsel for the State relied on the case of Sangeetaben
Mahendrabhai Patel versus State of Gujarat and Another reported in (2012)7 Supreme Court Cases 621 (paragraph 35), Medchl Chemicals &
Pharma (P) Ltd. Versus Biological E. Ltd. and Others reported in (2000)3 Supreme Court Cases 269 (paragraphs 14 to17) and State of Karnataka
versus M. Devendrappa and Another reported in (2002)3 Supreme Court Cases 89 (paragraph 9).
Repudiating the submissions on behalf of the petitioners, learned counsel for the opposite party no. 2 argued that the factum of issuance and dishonour
of cheques has not disputed. It is also not in dispute that the bill amount has not been paid by the petitioners despite receiving the goods. Whether there
was dishonest intention from the inception is to decided during the trial. It is contended that the dispute being civil in nature is not by itself a ground to
quash the criminal proceeding since in cases of fraud and forgery there would be some element of civil nature. In support of his argument learned
counsel for the opposite party no. 2 referred to the case of Mahesh Chaudhary versus State of Rajasthan and Another reported in (2009)4 Supreme
Court Cases 439 and Ravindra Kumar Madhanlal Goenka and Another versus Rugmini Ram Raghav Spinners Private Limited reported in (2009)11
Supreme Court Cases 529.
In the context of the argument advanced on behalf of the petitioners, it may be useful to refer to the case of Alpic Finance Ltd. versus P. Sadasivan
and another reported in (2001)3 Supreme Court Cases 531 wherein the Supreme Court held that merely because remedy by way of civil suit is
available is not an impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the offence alleged. In the case
of Rajesh Bajaj versus State NCT of Delhi and Others reported in (1999)3 Supreme Court Cases 259 the Supreme Court held that quashing of
complaint on the ground that it disclosed a commercial or money transaction is not justified. The relevant paragraph 10 of the judgement is quoted
herein below:
“10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is
hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course
of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code [ illustration f ] is worthy of
notice now:
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him
money, A not intending to repay it. A cheats.â€
In Rajesh Bajaj case (Supra) the Supreme Court held that the crux of the postulate is the intention of the person who induces the victim of his
representation and not the nature of the transaction which would become decisive in discerning whether there was commission of the offence or not.
In the case in hand, on perusal of the contents of the complaint in its entirety it cannot be said that it is so bereft of even the basic facts which are
absolutely necessary for making out a prima facie case for the offence alleged. At this juncture it may be beneficial to quote the relevant paragraph 17
of the judgement in Medchl Chemicals (Supra) which reads as follows:
“17. On a careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The
ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We,
however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be
led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe
the court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be
pursued in diverse situations. As a matter of fact they “are not mutually exclusive but clearly coextensive and essentially differ in their content and
consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the
accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for
suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is
completely barred. The two types of actions are quite different in content, scope and importâ€. (vide Pratibha Rani v. Suraj Kumar) (SCC p. 383, para
21).â€
In the case in hand, from the FIR and the materials collected during investigation it is evident that the necessary factual foundation has been laid for
the offence alleged. The charge-sheet prima facie discloses the commission of the offence. Therefore reliance on the case of Medchl Chemicals
(Supra) is of no help to the petitioners. On the contrary, the aforesaid decision supports the case of the opposite party. G. Sagar Suri’s case
(Supra) is clearly distinguishable on facts from the case in hand. In the aforesaid case the FIR alleging offences under section 406/420 IPC was
lodged by the General Manager of a finance company roping in the appellants and their family members in order to coerce them to refund the amount
borrowed by them from the company. A complaint under section 138 of the Negotiable Instruments Act was already pending against the appellants
and others. On facts it was held that the FIR and the criminal prosecution for the alleged offences under section 406/420 IPC amounted to abuse of
process of law and hence the proceeding was liable to be quashed. Anil Mahajan’s case (Supra) is also not applicable to the case in hand. In the
said case, having regard to the substance of the complaint it was held that the matter pertains to a civil case of breach of contract and not a criminal
case of offence of cheating. Hence the Magistrate erred in issuing process. In Hotline Teletubes (Supra), it was observed that on a bare perusal of
the complaint it appeared that the case is of purely civil liability and no criminal offence is disclosed much less offences either under section 406 or 420
IPC. In the complaint petition it was alleged that the complainant supplied the goods to the accused persons but they failed to pay the price therefor.
There was no whisper in the complaint that at the very inception of the contract between the parties, there was any intention to cheat. In the case in
hand investigation revealed that the accused persons dishonestly induced the complainant to deliver the goods amounting to Rs.8,18,304/-. The relevant
portion of the charge-sheet submitted in the impugned criminal proceeding reads as follows:
“During investigation collected the bank statements and after going through those documents it was learnt that the accused concerned dishonoured
all four cheques in such a tricky manner that the credit limit in his account was minimized and he allured the complainant to inform him just before and
after the encashment of those cheques and as and when the cheques were declared dishonoured then sufficient amount was transferred into the
account. Hence on the basis of collected evidence a prima facie case is well established against both the accused persons namely, Ritesh Narula and
Sumesh Narula……………â€
Hotline Teletubes(Supra) has therefore no manner of application to the case in hand. Dr Sharma’s Nursing Home case (Supra) is not appropriate
for the purpose of the present case. In the aforesaid case the complainant got his brother admitted in a nursing home on the assurance given by the
authorities that air conditioned rooms were available in the said nursing home. However, the room provided to the complainant was found to be not air
conditioned though he was charged for such a room. It was held that there are no materials from which it can be said even prima facie that the
appellant “dishonestly induced†the complainant to part with his money. V.P. Shrivastava’s case (Supra) is of no avail being factually
distinguishable. In the said case it was observed that there were no specific averments that the appellant, a retired senior employee of FCIL had
dishonestly induced the respondent to enter into any agreement with FCIL. It was held that at best, it was a case of breach of contract for which
Fertilizer Corporation of India Ltd. was already defending civil suit filed by Indian Explosives Ltd.. In Vir Prakash Sharma’s case (Supra) the
parties entered into a contract for sale and purchase of welding rods. The appellant allegedly did not pay some amount due from him towards supply
of the said goods. He issued two cheques for a sum of Rs. 3559/- and Rs. 3776/- in the year 1983. The said cheques were dishonoured. A private
complaint was filed by the first respondent alleging that the appellant had committed offences under section 406, 409, 420 and 417 IPC. On the
aforesaid facts it was held that non payment or under payment of price of goods by itself does not amount to commission of offence of cheating or
criminal breach of trust. It is essentially a civil dispute. In the absence of allegations in the complaint showing existence of the ingredients of the
alleged offences, the complaint was quashed. In the case in hand, from the materials collected during investigation a prima facie case for the offence
alleged appears to have been made out. R.K. Vijayasarathy’s case (Supra) is also not apposite being distinguishable on facts.
For the reasons aforestated, the application being CRR 1717 of 2017 is dismissed.
The application being CRAN No. 3650 of 2018 also stands dismissed.
No order as to cost.
It is clarified that this Court has not expressed any opinion on the merits of the case. The trial Court shall proceed with GR Case No. 1805 of 2014
and dispose of the same in accordance with law without being influenced by any observation made hereinabove.
Urgent photostat certified copy of this judgement if applied for, be given to the applicant upon compliance of requisite formalities.
