ORDER
Mansoor Ahmad Mir, J.
1. The petitioners in this petition have sought indulgence of this Court for quashing of the proceedings initiated and the order dated 1st, of December 2004 passed by Judicial Magistrate 1st, Class (Judge Small Causes), whereby and where-under the cognizance was taken and process came to be issued against the petitioners i.e. accused, in the complaint titled as Trilok Singh v. Rama Vision and Ors., on the grounds taken in the petition.
2. Heard. Perused. Considered.
3. The exercising of powers under Section 561-A Cr. P.C. is an exception and not the rule. This provision of law does not confer any new powers on the High Court. It prescribes following three circumstances under which inherent jurisdiction can be exercised by the High Court:
(1) to give effect to an order under the Code;
(2) to prevent abuse of the process of Court; and
(3) to otherwise to secure the ends of justice.
4. While exercising powers under this section, this Court does not function as an appellate Court or revisional Court. Thus the inherent jurisdiction in terms of this Section is to be exercised sparingly, carefully and with great care and caution.
5. Ld. Counsel for petitioners, accused Nos. 2 and 3 in the complaint, argued that the complainant has averred in the complaint that he had send money through bank draft to accused No. 3, then how the accused 1 or 2 are involved in the commission of offence. As per the averment contained in the complaint he had to deposit Rs. 16.00 lacs and thereafter, the accused No. 1 had to issue dealership to complainant but he had only deposited Rs. 14.47 Lacs. And how it can be said that there were prima-facie grounds for presuming that the accused are involved in the commission of offence punishable under Section 420 RPC. The entire proceedings are abuse of process of law and need to be quashed.
6. Ld. Counsel for complainant/respondent No. 1 Trilok Singh, argued that the accused had by deceitful means induced the complainant to deposit the amount and with fraudulent/dishonest intention, failed to issue dealership, thereby had cheated the complainant and are thus prima facie involved in the commission of offence punishable under Section 420 of RPC.
7. It is worthwhile to mention herein that when the complaint came to be filed, the trial Court recorded preliminary statement of the complaint and one witness namely Surinder Singh. Surinder Singh had deposed that he knows the complainant, Manjeet Singh and Surinder Singh came from Delhi and they handed over drafts to them in order to purchase T. V. and Battery etc. While as the complainant Trilok Singh had deposed that Surinder Singh and Manjit Singh came to his shop and told him that they had to issue a dealership and asked him to deposit money and thereafter he had sent money through draft in the name of Company. Neither the accused have supplied the articles nor issued dealership. In both the statements it is nowhere stated that accused had deceitful intention from the very out set and they had deceitfully induced the complainant to deposit the money. It is no where also stated that the accused dishonestly or fraudulently made the complainant to deposit the money. All the ingredients which constitute 420 RPC are missing.
8. While going through the complaint and the statements recorded, all the ingredients for constituting offence punishable under Section 420 RPC are lacking. As per the averments contained in the complaint, the complainant had to deposit Rs. 16.00 lacs and thereafter, the accused i.e. M/s. Rama Vision Company, had to issue dealership to the complainant. The complainant had not deposited Rs. 16.00 lacs in full thus how it can be said that accused had failed to issue dealership to the complainant. In order to constitute offence under Section 420 RPC, the complaint must disclose all the ingredients of the offence. The complainant had to allege that accused had dishonestly induced the complainant and made him to deliver the property and complainant acted on the representation which was false to the knowledge of the accused and accused had dishonest intention from the very beginning.
9. It is averred in the complaint that money was not handed over to the accused No. 2 and 3 but was deposited by way of drafts in the account of the company, how accused No. 2, 3 had cheated him and what was their role and intention is not given in the complaint.
10. The Apex Court, has, in a case titled as Vijaya Rao v. State of Rajasthan and Anr. reported in (2005) 7 Supreme Court Cases 69 held that if the ingredients of offence in question are lacking in the complaint, the cognizance taken and process issued are abuse of process of Court. It is profitable to reproduce Para No. 5 of the said judgment herein:
5. Except using the expressions 'fraudulent misappropriation' and 'mala fide intention', the allegations in the complaint do not at all disclose as to how the appellant can be found guilty of the offence under Section 420 IPC. The ingredients constituting Section 420 are conspicuously lacking in the complaint. All the Courts have failed to address themselves to the crucial question whether as far as the appellant is concerned any offence under Section 420 or for that matter any offence under Section 409 has been committed. Even going by the allegations in the complaint allowing the criminal proceedings to go on against the appellant would result in abuse of the process of the Court. Hence, the proceedings in Complaint Case No. 10 of 2000 on the file of the Chief Judicial Magistrate. Sikar are quashed as against the appellant. The appeal is allowed accordingly.
11. The Apex Court has also held in a case tiled as G. Sagar Suri v. State of U.P. and Ors. reported in : 2000CriLJ824 , that it is the duty of the Criminal Court to exercise great deal of caution before issuing process and it is the duty of the Court to see and ascertain that whether the matter has been given a cloak of criminal offence which is essentially of civil nature. And it is also to be borne in mind that whether Criminal proceedings are not short cut of other remedies of law. It is profitable to reproduce Para 8 of the said judgment herein:
8. Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the manner superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut 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.
12. This Court in a case titled as Satish Khosla and Ors v. Puran Chand held that before taking cognizance and issuing process, it must be shown that a false representation was made and complainant was made to believe and was induced to part with the property with dishonest intention from the very outset, then it could be said that there are grounds to presume that the accused are involved in the commission of offence punishable under Section 420 RPC. Simply retention of money by the accused may be a civil wrong. It is profitable to reproduce relevant portion of Para 4 of the said judgment herein:
4. The ingredients of offence under Section 420 RPC are not only that accused has cheated some one but also that by doing so he has dishonestly induced the person who was cheated to deliver the property. This shows to constitute an offence under this Section, it must be shown that the complain' ant parted with his property acting on a representation which was false to the knowledge of the accused and that the accused had a dishonest intention from the very out set. The fraudulent and dishonest intention of causing wrongful gain to one person and wrongful loss to another person and had intention to defraud the complainant at the time of making the promise. From the mere failure of the accused to keep up the promise, cannot be presumed as an act leading to cheating. Besides, this is not sufficient to show that false representation had been made but it is necessary to show that the representation was false to the knowledge of the accused and was made to deceive the complainant....
13. The Apex Court also has held in a case titled as Hira Lal Hart Lal Bhagwati v. C.B.I., New Delhi, reported in : 2003CriLJ3041 , that inor-der to establish offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. It is profitable to reproduce Para 45 of the said Judgment herein:
45. It is settled law, by catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it and, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Indian Penal Code does not arise. We have read the charge-sheet as a whole. There is no allegation in the First Information Report or the charge-sheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what were the roles played by the appellants in the alleged offence. The appellants, in our view, could not be attributed any mens-rea of evasion of customs duty or cheating the Government of India as the cancer society is a non-profit organisation and, therefore, the allegations against the appellants levelled by the prosecution are unsustainable. Kar Vivad Samadhan Scheme Certificate along with the Duncan's and Sushila Rani's judgment clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process....
14. Applying the said test to the case in hand, I am of the considered view that the offence is not made out for the following reasons:
15. As per the averments contained in the complaint, accused No. 2 and made a promise that he had to deposit Rs. 16.00 lacs and thereafter company had to issue dealership to him. But the complainant deposited rupees 14.47 lacs only.
16. In the given circumstances the complainant had failed to fulfil his own part of promise, then how could it be said that the accused were supposed to issue dealership to the complainant.
17. Mere breach of contract and the ingredients which constitute the offence of cheating punishable under Section 420, RPC are altogether different and there is a distinction in between the two which is a fine one. The intention is the gist of the offence. To hold the person guilty of cheating, it is necessary to be indicated or shown that accused had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep a promise subsequently cannot be said that accused had dishonest intention from the very beginning.
18. I having glance of the above discussion, the complaint filed, cognizance taken and process issued, are abuse of process of law and are accordingly quashed.
19. Registry is directed to send down the record of the court below along with copy of this order.