IMPORTANT POINT
Merely not paying the amount due and payable under an agreement or not paying amount in lieu of one month notice before terminating agreement cannot be said to be cheating.

JUDGMENT

M.R. Shah, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.12.2016 passed by the High Court of Kerala at Ernakulam in Criminal Miscellaneous Case No.355 of 2016 by which the High Court has quashed the proceedings of CC 139 of 2015 at JFCMIII at Calicut, the original Complainant has preferred the present Appeal.

3. That the appellant herein filed a complaint against the respondent accused for the offences under Section 420, 406 read with Section 34 of the IPC alleging, inter alia, that after entering into the agreement by the Accused with the Complainant with regard to availing of intellectual services for marketing the products of the complainant, the accused did not pay the amount due and payable under the agreement and paid a sum of Rs.1,50,000/only (Rupees One Lakh Fifty Thousand Only) and without paying the remaining amount backed out from the agreement and thereby the accused has committed the offence as alleged.

3.1 On the chargesheet filed by the Investigating Officer, the complaint filed by the Appellantoriginal Complainant was registered as CC No.139 of 2015 on the file of the learned Judicial First Class Magistrate CourtIII at Kozhikode for the offences under Sections 406 and 420 read with Section 34 of the IPC. Therefore, the original accused approached the High Court under Section 482 of the Cr.PC to quash the criminal proceedings contending, inter alia, that the dispute is purely a civil dispute and even the averments and allegations made in the complaint do not disclose any cognizable offence for the offences under Sections 406 and 420 read with Section 34 of the IPC. It was also submitted that even for breach of contract and for damages etc. the complainant has already instituted a Suit. Having heard the learned counsel appearing on behalf of the original Accused and the original Complainant as a party in person, by impugned judgment and order the High Court has quashed the criminal proceedings by observing that the complaintcriminal proceeding is nothing but an abuse of the process of law as the averments and allegations made in the complaint the ingredients of Sections 406 and 420 of IPC are not satisfied. The High Court also observed that at the most the dispute can be said to be a civil nature which is tried to be converted into a criminal dispute.

3.2 Feeling aggrieved and dissatisfied with the judgment and order passed by the High Court quashing the criminal proceedings initiated by the original complainant, the original Complainant has preferred the present Appeal.

4. We have heard the appellant herein the original Complainantparty in person and Shri Sriram P., learned Advocate appearing on behalf of the original Accused and learned Advocate appearing on behalf of the State of the Kerala.

4.1 The appellant, party in person has vehemently submitted that, in the facts and circumstances of the case, the High Court has committed grave error in quashing the criminal proceedings. It is vehemently submitted by the Appellantparty in person that as the accused did not act as per the agreement entered into between the parties and did not make the payment due and payable under the agreement and a sum of Rs.3,00,000/(Rupees Three Lakhs Only) was due and payable and, therefore, the accused committed the offence of cheating. It is submitted that after availing his intellectual services the accused did not make the full payment including one month’s notice before terminating the contract/agreement.

4.2 An attempt was made by the Appellantparty in person submitting that as such initially the learned Judge dismissed the application, which is evident from P14. It is submitted that, however, when the subsequently when the order was declared, the learned Judge allowed the petition and quashed the criminal proceeding. It is submitted that, therefore, the impugned judgment and order passed by the learned Single Judge deserves to be quashed and set aside.

5. The