Judgment:
ORDER
1. The present application has been filed under Section 482 of the Code of Criminal Procedure for quashing the proceedings pending in Criminal Complaint No. 114/1988 in the Court of the Judicial Magistrate, First Class, 3rd Court, Nagpur.
2. The respondent (hereinafter referred to as the Complainant) is a waste paper merchant and is carrying on his business of selling waste paper under the name and style of 'Jagdish Trading Company' at old Reshamoli, Itwari, Nagpur. The petitioners are the accused. The petitioner No. 2 is a paper manufacturing company incorporated under the Companies Act, as a public limited company and petitioner No. 1 is the Managing Director of the said company with its paper mill manufacturing factory at Sihore (Madhya Pradesh). It was purchasing waste paper from the complainant for its factory. The company was liable for sales tax assessment in regard to the sales purchase transaction at the hands of the Sales Tax Authorities. The company used to place orders with the complainant for supply of waste paper. It appears that one of the conditions of the said transaction was that the Central sales tax was 4% subject to the supply of 'C' form by the company. The transaction being inter-state sale it was governed by the Central Sales Tax Act and the transaction was, therefore, attracting the sales tax at the lesser rate of 4% instead of usual 10% provided the purchase i.e. the company sends the requisite 'C' Form duly filled in to the supplier i.e. the complainant. There seems to be no dispute that the company did send 'C' forms for some years and the complainant in turn used to pay sales tax at the rate of 4% in his assessment of sales tax before the Sales Tax Authorities at Nagpur. There is no dispute that the company used to send 'C' Forms for one or two years together. The relevant averments in the complaint to this effect are as under :
'However, the accused No. 1 company used to send 'C' Forms for one or two years together. For example 'C' forms due for the year 1980-81 and 1981-82 numbering 12 were sent by the accused No. 1 company together by the end of 1982. The complainant, therefore, saw nothing wrong when he did not receive the 'C' forms from the accused No. 1 company for his bills from 6-7-1983.'
3. It is further averred in the complaint that from 6-7-1983 up to 27-12-1984 the company failed to send a single 'C' form even though during the period waste paper was supplied under 52 bills viz., 29 in the year 1983-84 and 23 in the year 1984-85. According to the complaint the company was not in a position to get 'C' form the Sales Tax Authorities at Sihore on account of its accumulated Sales Tax Arrears, which was a result of the precarious financial position of the company.
4. Mr. Bobde, the learned counsel appearing on behalf of the petitioners contended that the facts as disclosed in the complaint cannot constitute an offence of cheating as defined under Section 415 of the Indian Penal Code. According to him, there is nothing to show that the petitioners deceived the complainant acting fraudulently or dishonestly by inducing him to deliver any property. In this connection he has relied on the decision reported in : 1972CriLJ1243 State of Kerala v. A. Pareed Pilai. He has invited my attention to the following observations from para 16 of the said judgment :
'It would follow from the above that it was not in pursuance of any representation regarding the consignment of oil tins to the railway that the bank gave credit to the firm of the accused for the amounts of the demand drafts. On the contrary, the amounts of demand drafts were credited in the account of the firm immediately on receipt of the demand drafts even though they were not accompanied by the railway receipts. The railway receipts were, no doubt, to be sent by the accused to the bank subsequently, but there is no cogent evidence to show that at the time when the accused sent the demand drafts they did not have the intention to send subsequently railway receipts in respect of oil tins which were actually delivered to the railways. The material on record indicates that more than 5,000 oil tins were despatched to various stations from Alwaye Railway Station on behalf of the firm of the accused respondents during the period from February 2, 1963 to April 24, 1963. Those oil tins were appropriated by the railway authorities towards the railway receipts of earlier dates and were sent to various stations. The fact that more than 5,000 oil tins were despatched on behalf of the firm of the accused to the various stations during the above period is hardly consistent with a dishonest intention on their part. It may be that the accused could not, keep up the delivery of the oil tins to the railways and notions could be despatched in respect of the said thirteen railway receipts but that fact can give rise only to a civil liability of the accused. It is not sufficient to fasten a criminal liability on them. To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise.'
He has further relied on the decision reported in : 1974CriLJ352 , Hari Prasad Chamaria v. Bishnu Kumar Surekha. He has specifically invited my attention to the following observations :-
There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35,000/-. There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000/- by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the, respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating.'
He has also further relied on the decision reported in : 1980CriLJ822 , Trilok Singh v. Satya Deo Tripathi. My attention is invited to the following observation at para 5 of the judgment :-
'The question as to what were the terms of the settlement and whether they were duly incorporated in the printed agreement or not were all questions which could be properly and adequately decided in a civil Court.'
5. As against this Mr. Sirpurkar, learned counsel for the respondent heavily relied on the decision reported in : AIR1983SC1149 , Ram Avtar Gupta v. Gopal Das Taliwal. He has particularly invited my attention to para 4 of the judgment which is reproduced as under :
'On admitted facts as indicated earlier the respondents had merely paid a total sum of Rs. 5,000/- (Rs. 1,400/- towards freight and Rs. 3,600/- towards the price) and no further amount whatsoever was at all paid by them either to the complainant or to the consignors. In fact, it was the complainant (carriers) who settled all the dues of the consignors by paying to them Rs. 19,400/- and odd. In other words, the respondents even after getting delivery of the consignment from the carries allegedly by making misrepresentation and practising deceit have failed to make good a substantial part of the price of the goods even up to this day. It is, therefore, not a case of delayed payment at all but a case of no substantial payment. We are satisfied that if the High Court had not fallen into the error of thinking that the amount of Rs. 19,000/- and odd had been paid by the respondents, it would not have reversed the Sessions Court's order. We accordingly set aside the High Court's order and direct that the learned Judicial Magistrate, Khair, Aligarh will proceed with a criminal case against the respondents and dispose it of according to law.'
In my view the above decision is quite distinguishable. In fact, it goes against his client. In this case the Hon'ble Supreme Court has observed that the accused, even after getting delivery of the consignment from the carriers by making misrepresentation and practising deceit, failed to make good a substantial part of the price of the goods. In the present case there is no dispute that the price was paid by the accused. The only grievance that has been made in the complaint is that the company did not supply the 'C' forms and consequently the complainant was required to pay sales tax at the rate of 10% to the Sales Tax Authority. In view of this the decision relied upon by Mr. Sirpurkar is not at all relevant of the facts of our case.
6. After hearing the counsel at some length and after going through the various decisions relied upon by Mr. Bobde, I have no doubt that the complainant does not make out offence under Section 420 read with Sections 418 and 415 of the Indian Penal Code. As I have already pointed out above with reference to the averments in the complaint that th company was sending the 'C' forms for quite some time and it was only in 1983-84 and 1984-85 that the 'C' forms were not sent by the company to the complainant. The fact that the 'C' forms were being sent by the company for quite some time for some years clearly goes to show that the company had no fraudulent or dishonest intention of deceiving the complainant. On the other hand, the circumstances show that the company did intend to send the 'C' forms to the complainant. From the complainant itself it is further clear that from 6-7-1983 up to 27-12-1984 it was not possible to send 'C' form to the complainant since they were not supplied to the company by the Sales Tax Authority. There is no dispute that the company was not in a position to get the 'C' form from the Sales Tax Authorities at Sihore on account of its accumulated S. T. arrears which was the result of the precarious financial position of the company, therefore it did not send 'C' form to the complainant, This cannot be a sufficient ground to fasten criminal liability for the offence of cheating. It would be necessary for the complainant to show that the intention of the petitioner was dishonest at the time of the transaction. Such dishonest intention cannot be inferred from the mere fact that company could not subsequently fulfill the promise.
7. Mr. Sirpurkar vehemently argued that since the company did not send 'C' form for quite some time even though it was regularly receiving goods it shows that the company was acting dishonestly and fraudulently and thus a deception was practised on the complainant to part with the goods. It is difficult to accept this argument. As I have already observed above, even in the past the company was sending the 'C' forms for one year or two years together and this was never objected to by the complainant. Having regard to these facts it is difficult to hold that the petitioners acted dishonestly or fraudulently to deceive the complainant. It is merely a case of breach of condition which only attracts a civil liability. The petition is accordingly allowed. Rule is made absolute in terms of prayer clauses '(a), (b) and (c)'.
8. Petition allowed.