I.A. Ansari, J.
1. By making this application under Article 226 of the Constitution of India, the petitioners, who are accused in Complaint Case No. 802/94 (later on, re-numbered as Complaint Case No. 7577/2002), pending in the Court of Chief Judicial Magistrate, Bareilly, Uttar Pradesh, has sought for setting aside the quashing not only the complaint, which has given rise to the Complaint Case aforementioned, but also the order, dated 14-3-2008, whereby the learned Court below has, due to absence of the accused-petitioners, in the case aforementioned, directed issuance of non-bailable Warrants of Arrest against them fixing 21-5-2003 for their appearance.
2. I have heard Mr. S. P. Roy, learned Counsel for the accused-petitioners.
3. The law, with regard to quashing of criminal complaint, is no longer res Integra. A catena of judicial decisions have settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapur v. State of Punjab : 1960CriLJ1239 , wherein the question, which arose for consideration was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out; Gajendragadkar, J. speaking for the Court observed that though, ordinarily, criminal proceedings instituted against an accused must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R. P. Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed.
4. As a corollary to what has been discussed above, it is also clear that if the contents of the. complaint constitute offence, such a complaint cannot be quashed.
5. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court, in the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. reported in : 1992CriLJ527 laid down as follows:
102. In ike backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised:
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge.
6. It is clear from a close reading of the principles laid down in the case of R. P. Kapoor (supra) and Bhajanlal (supra) that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made in the First Information Report or the complaint, even if taken at their face value and accepted in their entirety as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the FIR or complaint and evidence collected in support of. the same do not disclose the commission of any offence and/or make out a case against the accused, and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
7. Coupled with the above, it is also worth pointing out that when the allegations, made in a complaint, disclose commission of an offence, such a complaint cannot be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the complaint or the probability of the defence plea can be determined only by effective investigation or at the trial and not in a proceeding for quashing.
8. In fact, in the case of Bhajanlal (supra), the Apex Court gave a note of caution, on the power of quashing of criminal proceedings, in the following words:
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.
9. From the observations made in Bhajanlal (supra), what clearly surfaces is that the power to quash a criminal proceeding should be exercised sparingly and with circumspection and that too, in the rarest of rare cases, and, hence, a Court will not be justified in holding, in a proceeding for quashing of FIR or complaint, an enquiry as to the correctness, veracity or otherwise of the allegations made in the FIR or the complaint, as the case may be. Consequently, when a person seeks to get a complaint or FIR quashed by raising a defence, which is founded on an oral statement or a documentary material, intending thereby to show that the allegations made in the FIR or the complaint, as the case may be, are incorrect or untrue, the Court cannot quash the criminal proceeding by relying on such an oral statement or such a documentary material, for, doing so would amount to holding an enquiry into the question as to whether the allegations made in the FIR or the complaint, as the case may be, are true or are not. To put it a little differently, a High Court cannot, ordinarily, in exercise of its powers under Article 226, quash a complaint or FIR by placing reliance on a defence plea, for, it would amount to holding that the allegations made in the FIR or the complaint, as the case may be, are false, though such a conclusion cannot be reached except on the completion of investigation or at the trial.
10. Turning, now, to the question as to whether a writ petition under Article 226 of the Constitution of India can be entertained by this High Court for quashing of a complaint, which has been lodged in a Court, at Bareli, in the State of Uttar Pradesh, it may be pointed out that Article 226, as it stands today, reads as follows:
226. Power of High Courts to issue certain writs.
(1) Notwithstanding anything in Article 32, every High Court shall have/power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government authority or person any also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
11. While considering the question of territorial limits of the jurisdiction of a High Court under Article 226, it is necessary to bear in mind that Clause (2) of Article 226 did not originally, exist. In the absence of Clause (2) of Article 226, when the question arose as to whether a High Court could invoke its jurisdiction, under Article 226, to issue writs based on the ground that the cause of action had arisen within the territorial limits of the jurisdiction of the High Court, the Constitution Bench, while interpreting Article 226 (as it stood then) observed, in Election Commission, India v. Saka Venkata Subba Rao AIR 1953 SC 210, as follows:.The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226, which makes no reference to any cause of action or where it arises, but insists on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction.
12. Thus, in Saka Venkata Subba Rao (supra), the Supreme Court had expressed the view, in no uncertain words, that in the absence of a specific provision in Article 226 on the lines of the Code of Civil Procedure, the High Court could not have exercised jurisdiction on the plea that the whole or part of the cause of action had arisen within its jurisdiction. In other words, what the Supreme Court in Saka Venkata Subba Rao (supra), had held was that in the absence of a specific provision, in Article 226, suggesting that the cause of action would attract jurisdiction to enable a High Court to issue, under Article 226, writs, the High Court could not have exercised jurisdiction, under Article 226, on the plea that the whole or part of the cause of action had arisen within its jurisdiction. According to what Saka Venkata Subba Rao (Supra) laid down was that a High Court can exercise jurisdiction, under Article 226, only if the person or authority to whom the writ is sought to be issued is located within the territorial limits of the High Court. Extended logically, the decision, in Saka Venkata Subba Rao (supra), conveyed that even if cause of action or part thereof had arisen within the territorial limits of a High Court, the High Court could not have issued writs unless the person or authority to whom the writ was sought to be issued stood located within the territorial limits of the High Court. This view was followed in subsequent cases.
13. When the question was, once again, raised as to what are the limitations on the territorial jurisdiction of the High Court and if, on the ground of cause of action having arisen within the territorial jurisdiction of the High Court, a High Court will be constitutionally competent to issue writ, the Apex Court, in Lt. Col. Khajoor Singh v. The Union of India and Anr. : [1961]2SCR828 , following its earlier decision in Saka Venkata Subba Rao (supra) and K.S. Raashid and Son v. The Income-tax Investigation Commission : [1954]25ITR167(SC) , observed thus : '....Therefore, the view taken in Election Commission, India v. Saka Venkata Subba Rao : [1953]4SCR1144 and K.S. Rashid and Son v. The Income-tax Investigation Commission : [1954]25ITR167(SC) that there is two-fold limitation on the power of the High Court to issue writs etc. under Article 226, namely, (i) the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction', that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction, and (ii) the person or authority to whom the High Court is empowered to issue such writs must be 'within those territories' which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories, is the correct one.'
14. From a close reading, of what had been laid down in Saka Venkata Subba Rao (supra), and Lt. Col. Khajoor Singh (supra), it becomes clear that there were considered to be two-fold limitations on the powers of the High Courts to issue writs under Article 226, namely, (i) that the seat of the person or authority to whom the writ is issued must be within the territorial limits of the High Court meaning thereby that the writs could not have been issued by a High Court to run beyond its territorial jurisdiction and (ii) that cause of action could not be a ground for the High Courts to assume jurisdiction unless the person or authority to whom the writ is sought to be issued stands located within the territorial limits of the High Court.
15. The consequence of the views, expressed in Saka Venkata Subba Rao and Lt. Col. Khajoor Singh (supra), was that it was only the High Court of Punjab, which could exercise jurisdiction, under Article 226 of the Constitution, against the Union of India and other instrumentalities of the Union Government located in Delhi. To remedy this situation, Clause (1-A) came to be inserted by the 15th Amendment Act, 1963, conferring thereby on the High Courts jurisdiction to entertain a petition, under Article 226, against the Union of India or any other body or authority located, in Delhi, if the cause of action arose, wholly or in part, within its jurisdiction. Clause (1-A) was, later on, renumbered as Clause (2) of Article 226.
16. Thus, Clause (2) was introduced to Article 226 with the object of enlarging the scope of the writ jurisdiction of the High Courts; hence, by virtue of Clause (2) of Article 226, the power conferred by Clause (1) of Article 226 on the High Courts to issue writs can, now, be exercised by a High Court if the cause of action, wholly or in part, has arisen within its territorial limits. In other words, in the context of territorial jurisdiction, the maintainability or otherwise of a writ petition in a High Court, now, depends on the answer to the question as to whether the cause of action or any part thereof has arisen within the territorial limits of the jurisdiction of the High Court, whose interference is sought. If the answer to this question is found in the affirmative, the High Court will have the territorial jurisdiction to entertain the writ petition and not otherwise.
17. The fall-out of the above discussion is that with the insertion of Clause (2) to Article 226, a High Court can, now, exercise its writ jurisdiction if the cause of action, wholly or in part, arises within the territorial limits of jurisdiction of the High Court even if the seat of the Government or the authority concerned to whom the direction, order or writs, sought to be issued, is not located within the territorial limits of the High Court. Conversely put, what Clause (2) of Article 226 conveys is that if the cause of action has not arisen, wholly or in part, within the territorial limits of the jurisdiction of a High Court, the High Court will not have the power to issue writ or writs even if the seat of the Government or of the authority concerned is located within the territorial jurisdiction of the High Court.
18. After an in-depth study of the subject of territorial jurisdiction of a High Court as postulated under Article 226, a three-Judge Bench of the Supreme Court, in Oil and Natural Gas Commission v. Utpal Kr. Basu reported in : (1994)4SCC711 laid down as follows:
(1)5. Clause (1) of Article 226 begins with a non obstante clause - Notwithstanding anything in Article 32 and provided that every High Court shall have power 'throughout the territories in relation to which it exercises jurisdiction', to issue to any person or authority, including in appropriate cases, any Government, 'within those territories' directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under Clause (2) of Article 226 the High Court may exercise its power conferred by Clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. This is, at best, case in the writ petition.
19. It may be pointed out that in Navinchandra N. Majithia v. State of Maharashtra and Ors. reported in : AIR2000SC2966 , which arose out of an application made, under Article 226, in the Bombay High Court, for quashing of an FIR lodged in the State of Meghalaya, the Apex Court, while relying, amongst others, on its decision in Utpal Kumar Basu (supra), has observed, 'From the provisions in Clause (2) of Article 226, it is clear that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court.'
20. Thus, the language, used in Clause (2) of the Article 226 and the authorities cited above, leave no room for doubt that a High Court can, now, invoke its powers under Article 226 only if the cause of action arises wholly or in part within the territorial limits of the jurisdiction of the High Court and not otherwise irrespective of the fact as to whether the person or authority to whom the writ, sought to be issued, is located within or outside the territorial limits of the High Court. In other words, it is possible for a High Court to quash a criminal proceeding launched in a Court, which falls outside the territorial jurisdiction of the High Court, if the cause of action or any part thereof is found to have arisen within the territorial limits of the High Court, whose interference with that criminal proceeding has been sought for.
21. In the backdrop of the position of law with regard to quashing of complaint and the territorial jurisdiction of a writ Court, while dealing with a case of quashing of complaint by invoking the provisions of Article 226, let me, now, turn to the question as to whether it is legally permissible, in the case at hand, to quash the complaint, in question.
22. My quest for an answer to the question, posed above, brings me to the allegations made in the complaint. The complaint, in question, reads as follows:
That the complainant is the partner of his firm M/s. Durga Prasad Gappa Mal, Shyamgang, Bareilly, having his shop No. 63-B, in Adarsh Mandi Isthal, Izzainagar, Bareilly, where the business transactions are usually done. The complainant looks after the day-to-day business of his firm.
2. That the accused persons representing themselves to be the partners of M/s. Deepak Roller Flour Mills, situated at G. S. Road, Dispur, Guwahati, approached the complainant in the second week of April, 1992 at his shop as staged above in Adarsh Mandi Isthal and induced the complainant to supply and sell wheat for their aforesaid mill. It was assured by the accused to the complainant that the cost of the wheat so supplied by the complainant would be paid on reaching the consignment at their destination and there would be no delay in the payments.
3. That after having reached the said consignment at the destination under their inducement, the complainant as per their requirement sent 300 bags of wheat, in two trucks comprising of 150 bags in each truck bearing No. PB 06/2371 and PB 06/2782, costing Rs. 102300/- on 14-4-92. The said consignment sent by the complainant was purchased from the firm M/s. Jaiswal Rice Industries, Bilsanda, Pilibhit, who was consigner inasmuch as the complainant duly paid the cost to the said firm for the ready trucks.
4. That after having reached the said consignment at the destination of the accused persons at Guwahati, the accused persons did not sent the amount of Rs. 102300/-payable at Bareilly to the complainant and thus have withheld the cost of the consignment as stated above and misappropriated the amounts causing wrongful loss to the complainant.
5. That thus accused persons by deceiving the complainant fraudulently and dishonestly induced the complainant to deliver 300 bags of wheat to them. The said consignment had been received the accused persons as such the accused persons caused wrongful loss to the complainant to the tune of Rs. 102300/-. Had the complainant known the deceitful designs of the accused persons, the complainant would not have sent the wheat. The complainant tried his level best to contact the accused persons but all in vain as they avoided to meet the complainant.
6. That the accused persons have cheated the complainant with the knowledge that they were likely to cause wrongful loss to the complainant whose interest in the transactions they were bound by legal contract to protect.
7. That thus the accused persons committed offences punishable under Section 420/418/409, I.P.C.
23. From the allegations made in the complaint, what transpires to be the substance of the accusations is that the present petitioners, representing themselves to ,be partners of M/s. Deepak Roller Flour Mills, situated at G. S. Road, Dispur, Guwahati, approached the complainant, in the second week of April, 1992 at his shop, at Adarsh Mandi Isthal, and induced the complainant to sell and supply to them wheat for their said Mill assuring the complainant that the cost of wheat would be paid, when consignments reach their destination, i.e., Guwahati, and that there would be no delay in the payment. Had the case of the accused-petitioners been that since the transaction, which has been referred to in the complaint, was a contract and accused-petitioners acknowledge that they are required to pay the dues, which they had incurred in obtaining the consignments aforementioned, it could have, perhaps, been contended, with some force, by the accused-petitioners that the transaction, in question, being wholly a civil contract, no criminal prosecution is legally sustainable in law. This is not, however, the ground for seeking to get the complaint, in question, quashed. What the petitioners contend is that they were not partners of the said Flour Mill and that they had not approached the complainant nor had they assured the complainant of prompt payment in respect of the wheat, which may be received by the said Flour Mill on being sold and supplied by the complainant. Thus, in effect, what the accused-petitioners contend is that the statements, made in the complaint, are factually untrue and false and, hence, the complaint shall be quashed by holding that the complaint is based on false allegations.
24. It is trite, as already pointed out above, that when a complaint is sought to be quashed, the Court has to proceed on the assumption that the statements, made in the complaint, are true and correct and, on such assumption, when the statements, made in the complaint, are found to have satisfied the ingredients of an offence, such a complaint cannot be quashed. In the present case, the complainant alleges that the accused-petitioners represented themselves to be partners of M/s. Deepak Roller Flour Mills. The accused-petitioners, now, contend that they were never partners of the said Flour Mill and that they had made no such representation to the complainant. Since this Court has to proceed on the assumption that the allegations, made in the complaint, are true, the consequence would be that though the accused-petitioners, according to their own assertions, are not partners, yet they had represented themselves as partners of the said Flour Mill and induced thereby, as alleged In the complaint, the complainant to part with the wheat by selling and supplying the same to the said Flour Mill. When the allegations, made in the complaint, are viewed in this light, it further logically follows that the accused-petitioners had, according to the complainant, projected themselves as partners of the said Flour Mill and they assured the complainant that the consideration for the wheat, which may be sold and supplied to the said Flour Mill, would be paid by the accused-petitioners, though the accused-petitioners were not the partners of the said Flour Mill and they could not have, therefore, legally represented themselves to the partners of the said Flour Mill and induced thereby the complainant to sell and supply the wheat to the said Flour Mill. Thus, the statements, made in the complaint, clearly make out a case of commission of offence of cheating by the accused-petitioners.
25. What surfaces from the above discussion is that this Court, at this stage, has to proceed on the assumption that the accusations, made in the complaint, are true. When so proceeded, what emerges is that though the accused-petitioners claim that they were never partners of M/s. Deepak Roller Flour Mills, yet they had, representing themselves to be the partners of the said Flour Mill, approached the complainant as alleged by the complainant and induced, in the complainant, the belief that prompt payment would be made by the said Flour Mill in respect of the wheat, which may be sold and supplied to the said Flour Mill by the complainant, and thereby made the complainant act on such belief, sell and supply wheat to the said Flour Mill, but after 300 bags of wheat were sold to, and received by, the said Mill, the said Flour Mill did not make payment of the total consideration value of Rs. 1,03,000/- as the accused-petitioners are, now, contending that they were never partners of the said Flour Mill and they had never approached and/or made such representations as are alleged to have been made by them to the complainant.
26. In the circumstances as indicated above, the accused-petitioners have prima facie committed an offence under Section 420, I.P.C. and it can, now, be determined only at the trial as to who between the two, namely, the complainant, on the one hand, and the accused-petitioners, on the other hand, is telling the truth.
27. In view of the fact that misrepresentation of fact was allegedly made by the accused-petitioners,' at Bareilly, inducing thereby the complainant to sell and supply wheat to the said Flour Mill, at Guwahati, it logically follows that the offence of cheating, as alleged in the present case, was committed at Bareilly and the Chief Judicial Magistrate, Bareilly, has the territorial jurisdiction to enquire into and try the offence(s), which are alleged to have been committed by the complainant. The question as to whether the accusations made in the complaint are true or false is a question, which can be determined at the trial and not, at this stage, in the present writ proceeding.
28. Mr. Roy has sought to contend that the present complaint discloses a purely civil dispute and, in such a case, criminal prosecution is an abuse of the process of the Court. In support of this submission, Mr. Roy has placed reliance on Indian Oil Corporation v. NEPC India Ltd. reported in : AIR2006SC2780 . The observations, made in para 10, which Mr. Roy has relied upon, may be reproduced hereinbelow:
10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, to irretrievable breakdown of marriages /families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which, do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. : 2000CriLJ824 , this Court observed : It is to be seen if a matter, which is essentially a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a shortcut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this' Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the Courts, to curb necessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250, Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.
(Emphasis added).
29. A cautious reading of above observations made in Indian Oil Corporation : AIR2006SC2780 (supra) shows that what the Apex Court has deprecated is the tendency to initiate criminal prosecution by branding a 'purely' civil dispute as criminal action. In the present case, as I have already pointed out above, the complaint does not make out a 'purely' civil dispute. Far from this, the complaint, in question, discloses that the allegations, made in the complaint, do constitute a 'complaint' within the meaning of Section 2(d), Cr.P.C., though the same allegations may be made in a civil suit. In the face of the stand, which the accused-petitioners have taken, the complaint cannot be quashed.
30. There can be no doubt, as contended by Mr. Roy, that a mere breach of contractual terms would not amount to cheating unless fraudulent or dishonest intention is shown to have existed at the very inception of the transaction. This Court has, therefore, no hesitation in holding that a mere breach of the terms of a contract would not amount to cheating unless fraudulent or dishonest intention is shown to have existed at the very inception of the transaction.
31. In the present case, when the complaint is read as a whole, it is clearly revealed that the petitioners had, according to the complainant, dishonestly induced the complainant to sell and supply wheat to the said Flour Mill without intending to make payment in respect thereof. It is not necessary that the word 'fraudulent' or the words 'dishonest intention' must be made in a complaint or must appear, in a complaint, to make out a case of cheating. Even if the/expressions, such as, fraudulent or dishonest intention do not appear in a complaint, yet, when a complaint, read as whole, reflects that the accused, named in the complaint, had, with 'fraudulent' or 'dishonest intention', induced the complainant to part with the property, which he would not have parted with, but for the deception, which had induced him to do so, the complaint cannot be quashed.
32. In the light of the law laid down in Rupan Deol Bajaj v. Kanwar Pal Singh Gill : 1996CriLJ381 , it is clear that what the Court has to determine is the intention of the person, who is alleged to have induced the victim with his representation. If the intention transpires to be dishonest, an offence is made out and the complaint cannot be quashed.
33. Cheating has been defined in Section 415, I.P.C. The ingredients of the offence of cheating require (i) deception of a person, (ii) whereby, fraudulently or dishonestly, inducing the person, so deceived, to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing 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 in body, mind, reputation or property. Deception of a person is common to the second and third requirements of the provisions of Section 415. The ingredients, as pointed out under (i) and (ii) hereinbefore, are alternative to each other and this is made significantly clear by use of disjunctive conjunction 'or'. The definition of the offence of cheating embraces cases in which no transfer of property is occasioned by the deception and also cases in which such a transfer occurs. Deception is the quintessence of the offence. (See Devender Kumar Singla v. Baldev Krishan Singla reported in : 2004CriLJ1774 .
34. Succinctly drawing distinction between breach of contract and offence of cheating, the Apex Court in Hriday Ranjan Prasad Verma v. State of Bihar reported in : 2000CriLJ2983 , has held that in the definition of cheating, as contained in Section 415, I.P.C., there are set forth two separate classes of acts, which the person deceived may be induced to do. In the first category of cases, according to what has been observed in Hriday Ranjan Prasad Verma (supra), the victim may be induced, fraudulently or dishonestly, to deliver any property to any person and, in the second class of cases, set forth in the section, what is material is the doing of a thing or omitting to do a thing, which the person deceived would not do or omit to do if he were not so deceived. The Apex Court has also made it clear, in Hriday Ranjan Prasad Verma (supra), that in the first category of cases, the 'inducement' must be fraudulent or dishonest, whereas, in the second category of cases, though the 'inducement' must, no doubt, be intentional, such 'inducement' need not necessarily be fraudulent or dishonest and in determining this question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one, for, it depends upon the intention of the accused at the time of making of inducement and such an intention may be inferred from his subsequent conduct, though his subsequent conduct is not the sole test. Mere breach of contract, reiterates the Court in Hriday Ranjan Prasad Verma (supra), cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown to have existed right at the beginning of the transaction, that is, at the time, when the offence is said to have been committed and it is, therefore, the intention, which is the gist of the offence of cheating. In order to hold a person guilty of cheating, it reminds the Supreme Court in Hriday Ranjan Prasad Verma (supra), necessary to show that the accused had fraudulent or dishonest intention at the time of making the promise, for, from mere subsequent failure to keep to the promise, such a culpable intention, right at the beginning, (that is, when the accused made the promise), cannot be presumed.
35. What crystallizes from the above discussion is that the complaint, in question, does make out an offence of cheating having been committed by the accused-petitioners. Whether the accused-petitioners have, as a matter of fact, committed such an offence or not is a question, which can be determined at the trial and not in this writ proceeding. This proceeding is, therefore, misconceived and cannot be sustained.
36. Because of what have been discussed and pointed out above, this writ petition is not admitted and the same shall accordingly stand dismissed. There shall, however, be no order as to costs.