Dishonest intention is an essential element of the offence of cheating under Section 418 of the Indian Penal Code. Mere breach of contract, without proof of dishonest intention, does not constitute cheating.

( 1 ) THIS is a petition filed under section 482, Criminal Procedure Code, by the two accused in C. C. No. . 388 of. 1976 on the file of the II Additional Judicial First Class magistrate, Nellore, for quashing a charge framed against them under section 418 of the indian Penal Code. The facts leading to this miscellaneous petition are as follows:

( 2 ) THE respondent D. Adisesha Reddi, who will hereinafter be referred to as the complainant filed a complaint against the two petitioners (who will hereinafter be referred to as the accused) in the Court of the II additional Judicial First Class Magistrate,. Nellore, alleging that the tpo accused committed an offence punishable under section 418,, indian Penal Code on 28th November, 197w. The complaint was filed in January, 1973. The case was enquired into as C. C. No. 47 of 1973. The complainant examined himself as P. W. 1 and two others as P. Ws. 2 and 3. After the close of the prosecution evidence, the Judicial First Class Magistrate- framed a charge against the two accused. under section 418, Indian Penal Code. The accused thereupon filed Crl. R. C. No. 4 of 1975 in the Sessions Court, Nellore, praying the Court to quash the charge. Under his order dated 10th July, 1975, the I Additional sessions Judge, Nellore, allowed the revision by quashing the charge being of the view that the facts alleged against the accused did not constitute a criminal offence punishable under section 418, Indian Penal Code. The complainant thereupon filed Crl. R. C. No. 179 of 1976 in this Court contending that the. Additional Sessions Judge had no jurisdiction to quash the charge. Under the order dated 24th September, 1976, my learned brother P. Chennakesav Reddi, J. , allowed the revision holding that the Sessions Judge had no jurisdiction to quash the charge in view of section 397 (2), Criminal Procedure code. The accused have thereupon filed the instant application for quashing the charge invoking the inherent powers of this Court. under section 482, Criminal Procedure Code.

( 3 ) IT is well-settled that when a criminal proceeding, is started in a subordinate Court on a complaint of facts which do not constitute a criminal offence, such prosecution is an abuse of the process of the Court and the high Court can exercise its inherent powers to quash such proceeding. Sri M. V. Ramana Reddi, the learned Counsel for the accused, contends that the facts alleged by the complaint do not constitute an offence of cheating. Sri S. R. Ashok, the learned counsel for the complainant, on the other hand contends that the allegations of the complaint do constitute an offence of cheating punishable under section 418, Indian Penal code. The only question therefore for consideration in this proceedings is whether the facts alleged against the accused constitute an offence of cheating.

( 4 ) TO resolve the question it would be necessary to examine the allegations made by the complainant and they are as follows: The first and second accused are partners of a firm carrying on business under the name ayitha Subbarayudu and Co. , General Merchants and Commission Agents, Stonehouse- pet, Nellore. The complainant is also a businessman at Nellore. There were business dealings between the complainant and the accused since long. On 23rd November, 1972 the complainant agreed to sell 33 bags of pillipesara seeds to the accused at the rate of rs. 145 per bag. In pursuance of the agreement, he received an advance of Rs. 100 from the accused. On 28th November, 1972 the complainant delivered 32 bags of pillipesara to the accused and requested the accused to pay Rs. 1944-60 to one Pasuparti Sriramulu and the balance of the sale consideration to him. He requested the accused to prepare a bill by the time he would return after attending to his personal work in the Agricultural office. On his return to the business place of the accused, he was told by the accused that the bill was ready and that they had already paid an amount of Rs. 194

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