D. Raj Arora and anr. Vs. R. Viswanathan and anr. - Court Judgment

Excerpt:
criminal - cheating - section 417 of indian penal code, 1860 and section 482 of criminal procedure code, 1973 - petition filed to quash proceedings - petitioner accused of cheating - charge of cheating imposed on petitioner as cheque issued by him to respondent dishonoured on his direction to bank - petitioner submitted that ingredients have not been made out - court find it difficult to say at this stage that no offence is made out - held, petition liable to be dismissed in absence of evidence in support of petitioner's innocence. - - in the instant case, in paragraph (4) of the judgment, it is clearly mentioned that while drawing the cheque on may 4, 1987, at valsad on the instructions of accused no. 20, 000 knowing fully well that no payment will be made to the complainant under the said cheque.jayachandra reddy, j.1. this is an application to quash the procedings in c. c. no. 396 of 1987 on the file of the x- metropolitan magistrate secunderabad. the petitioners are the accused in the said case. the first respondent herein is the complainant. the complaint was filed for the offence of cheating under section 417, indian penal code, the allegations are that the compainant is working as the works manager of bharat metal box company in hyderabad. the first accused is the managing director and the second accused is the director of omega packaging p. ltd. valsad, gujarat. state. the first accused is doing his business in hyderabad. the complaint procured orders from the company of a-1 on commission being given. the first accused visited hyderabad and finalised the terms of working of the complainmant for his company. as per the procurment orders, the complainant commenced work fro march, 17, 1986. during the course of his work the complaint submitted various bills to a-1. on april 1, 1987, a-1 instructed the complainant to visit valsad, the place of his company to verify the accounts for settling the amount in regard to his outstanding bills, the complainant went to valsad and stayed there for some days. on may 4, 1987, a-1 promised to give a draft for the full amount. but he gave a cheque for rs. 20,000 towards part payment, the complainant required to hyderbad and presented the cheque in andhra bank. a few days after presentation of the cheque. a-1 instructed the bank to stop payment. consequently the cheque was dishonoured. therefore, the accused have committed the offence of cheating. 2. learned counsel for the petitioner submits that the ingredients of cheating have not been made out, inasmuch as, issuing of the cheque which is subsequently dishonoured, is not at all cheating. whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall return any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do 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 is said to 'cheat'. it is submitted that the relationship of creditor and debtor remained even through the cheque was dishonooured. reliance is placed on the judgments of this court in nagesh pal v. p. s. shanmuganathan [1987] aplj (sh. n) 18 and p. eswaara reddy v. state of a. p. [1985] aplj 195. in both these cases, there is a refernce to the decison of the madras high court in chidambaram chettiar v. shanmugham pillai, air 1938 mad 129 and of the kerala high court in k. surendran v. p. ramchandran nair [1967] mlj (crl) 793. in the latter decison, mathew j. observed thus: 'can it be said that this act has caused any damage to the complainant's body, mind reputation or property i think not. his position after taking the cheque and its dischonour was the same as it was before ... it cannot, therefore be said that by taking the cheque, the complainant sustained any damage to his body, mind reputation or property. there are no allegations in the complaint that, by taking the cheque on the faith of the complainant's implied representation of the accused. the complainant sustained any damage in his mind, body reputation or property. if that be so,the complaint does not disclose the elements necessary to constitute the offence of cheating.' 3. therefore, learned counsel's general submission is that, in all cases, even if the cheque is dishonoured, it does not amount to an offence. it can not be universally accepted. it depends on the facts of each case. if the re are allegations to the effect that the accused had the dishonest intention not to pay even at the time of issuance of the cheqque and the act of issuing a cheque which was dishonoured has caused damage to his mind, body or reputation it amounts to cheating. in the instant case, in paragraph (4) of the judgment, it is clearly mentioned that while drawing the cheque on may 4, 1987, at valsad on the instructions of accused no. 1, accused no. 2 did not have any intention to make the payment to the complainant and that both accused nos. 1 and 2 fraudulently and dishonestly induced the complainant to receive the cheque for rs. 20, 000 knowing fully well that no payment will be made to the complainant under the said cheque. there fore, the cases cited by learned counsel for the petitoners may not apply. it is difficult to say at this stage that no offence is made out. if the allegaions are accepted, some evidence has to be let in. however, the observations made herein do not, in any manner, influence the trial. accordingly the criminal petition is dismissed.