important points
Well settled principle underlying the exercise of jurisdiction by High Court is that the main consideration would be whether allegations contained in the complaint petition, even if given face value and taken to be correct in its entirety, disclose an offence or not.
Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. It is the intention which is the gist of the offence.

JUDGMENT

S.B. SINHA, J.—

1.Leave granted.

2. The parties hereto entered into a contract for sale and purchase of welding rods. Appellant allegedly did not pay some amount due from him towards supply of the said article. He issued two cheques for a sum of Rs. 3,559/- and Rs. 3,776/- in the year 1983. The said cheques were dishonoured. Alleging that by reason of such act, the appellant has committed offences under Sections 406, 409, 402 and 417 of the Indian Penal Code, a complaint petition was filed by the First Respondent in the Court of Special Judicial Magistrate, Rampur which was marked CC No. 132 of 1986. The principal allegation made therein against the appellant reads as under:

“That applicant, regarding these cheques and payment of money, wrote several times to accused and also sent his representative. But he kept on making excuses in making payment. At last he told on 19.12.1985 that he had issued fabricated cheques knowingly with an intention to cheat him and grab his money. He would not pay his money, he is free to take any action, whatever he likes.”

3.In his statement under Section 200 of the Code of Criminal Procedure, Respondent No.1 alleged:

“...Both the Cheques were, thus, dishonoured. I also wrote to accused regarding dishonour of Cheques, even I, myself, visited him and also sent to my Representative, but the accused kept on making excuses for making the payment. At last, on 19.12.1985, he told that he had knowingly issued these false and fabricated Cheques only to deceive and grab his money. He further told that he shall never pay back his money. You can do whatever you like. I went to lodge the Report, but Thana Officials did not note down the Report.”

4.One of the witnesses Shri Rajendra Kumar Saxena in his statement alleged:

“I was working as Supervisor in Hira Electronics during 1983. Accused Vir Prakash has purchased Electric Rods from the company worth Rs. 3599.33 P and Rs. 3776.73 P. Money was paid later on through Bank Cheques both cheques were dishonored by Bank. When accused was later on asked for the payment of the amount taken accused refused to pay and said that he had knowingly issued the fabricated cheques to deceive and grab the money. You can do what you like.”

5.Another witness A. Khalik also made similar statements which were recorded in the following terms :

“Stated on oath that I was an employee of Hira Electronics since 1983. Accused Vir Prakash has purchased articles worth Rs. 3599.33 P and Rs. 3776.73 P. in 1983 for which payment was made through Bank. Both cheques issued by the accused were dishonored. On when reminder for payment is made to the accused then he said that I have knowingly issued the fabricated cheques to cheat him and grab his money. I will not pay.”

6.Cognizance was taken against the appellant. He was summoned. An application was filed by him on 25.08.1987 for quashing of the said criminal proceeding before the High Court. A learned Single Judge of the Allahabad High Court by reason of the impugned order dated 3.01.2006 while refusing to exercise his jurisdiction stated:

“As the allegations against the applicant are factual in nature, that cannot be adjudicated in the present application, there is no ground for quashing criminal proceedings. Stay order, if any, stands vacated. The trial court is directed to conclude the trial expeditiously.”

7.The principle underlying exercise of jurisdiction by the High Court under Section 482 of the Code of Criminal Procedure is now well-settled viz. that the allegations contained in the complaint petition even if given face value and taken to be correct in its entirety do not disclose an offence or not is the question.

8.The dispute between the parties herein is essentially a civil dispute. Non-payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the