The High Court should not have quashed the FIR at the investigation stage as the complaint contained sufficient factual foundation to make out a case for investigation by the authorities.

Judgment

THOMAS, J.

( 1 ) LEAVE granted.

( 2 ) APPELLANT lodged an FIR with the police for the offence under Section 420, Indian Penal Code. A Division Bench of the Delhi High Court quashed the FIR on the premise that the complaint did not disclose the offence. The Division Bench reminded themselves that jurisdiction under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure "should be exercised sparingly and with circumspection" for quashing criminal proceedings. Nevertheless learned Judges found that the case on hand could not pass the test laid down by this Court in State of Haryana v. Bhajan Lal, 1992 Suppl (1) SCC 335 : (1992 AIR SCW 237 ). The appellant is obviously aggrieved by the aforesaid course of action adopted by the High Court and hence he filed the special leave petition.

( 3 ) IN the complaint filed by the appellant before the police,on the strength of which the FIR was prepared, the following averments, inter alia, were made. Appellant belongs to a company (M/s. Passion Apparel Private Limited) which manufactures and exports Readymade garments. On 15-11-1994 fifth respondent (Gagan Kishore Srivastava) Managing Director of M/s. Avren Junge Mode Gumbh Haus Der Model approached the complainant for purchase of Readymade garments of various kinds and induced the appellant to believe that 5th respondent would pay the price of the said goods on receiving the invoice. Such payment was promised to be made within fifteen days from the date of invoice of the goods which complainant would despatch to Germany. Appellant believed the aforesaid representation as true and on that belief he despatched goods worth 4,46,597. 25 D. M. (Deutsch Marks ). In March/april, 1995 respondent on receipt of 37 different invoices got the goods released and sold them to others. But the respondent paid only a sum of 1,15,194 D. M. Appellant further alleged in the complaint that respondent induced him to believe that he is a genuine dealer, but actually his intentions were not clear.

( 4 ) APPELLANT also mentioned in the complaint that one of the representatives of appellants company went to Germany in October, 1995 for realising the amount on the strength of an understanding reached between them that respondent would pay 2,00,000 D. M. in lieu of the remaining part of the price. However, the respondent did not honour even that subsequent understanding.

( 5 ) APPELLANT further mentioned in the complaint that he came to know later about the modus operandi which respondent adopted in regard to certain other manufacturers who too were duped by the respondent to the tune of rupees ten crores.

( 6 ) LEARNED Judges of the High Court have put forward three premises for quashing the FIR. First is that the complaint did not disclose commission of any offence of cheating punishable under Section 420 of the Indian Penal Code. Second is that there is nothing in the complaint to suggest that the petitioner had dishonest or fraudulent intention at the time the respondent exported goods worth 4,46,597. 25 D. M. by 37 different invoices. There is also nothing to indicate that the respondent, by deceiving the complainant, induced him to export goods worth 4,48,597. 25 D. M. (sic) The third is that on the face of the allegations contained in the complaint "it is purely a commercial transaction which in a nutshell is that the seller did not pay the balance amount of the goods received by him as per his assurance. "

( 7 ) AFTER quoting Section 415 of IPC learned Judges proceeded to consider the main elements of the offence in the following lines :"a bare reading of the definition of cheating would suggest that there are two elements thereof, namely, deception and dishonest intention to do or omit to do something. In order to bring a case within the first part of Section 415, it is essential, in the first place, that the person, who delivers the property should have been deceived before he makes the delivery; and in the second place that