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1983 Supreme(Gau) 40
GAUHATI HIGH COURT
S.M.Ali, J.
Manoranjan Halder -Appellant
Versus
Machfab Engineering Industries Represented By Its Partner Shri Bhawarlal Agarwal -Respondent
Criminal Revision No. 240 of 1982
Decided On : 15-03-1983
B.D.Agarwal, J.M.Choudhury, S.N.Bhuyan, Usha Baruah
Subsequent refusal to pay the balance amount cannot convert the transaction into cheating.
Headnote:
CHEATING - SECTION 415, 420 IPC - DISHONEST INTENTION - SUBSEQUENT REFUSAL TO PAY - CIVIL ACTION - CRIMINAL PROCEEDING QUASHED.
Fact of the Case:
The accused-petitioner placed an order with the complainant firm for the supply of goods and paid an advance amount. The accused-petitioner accepted some of the goods and issued a cheque for the balance amount, which was dishonoured by the bank. The complainant filed a complaint alleging that the accused-petitioner had cheated him by issuing a cheque without sufficient funds.
Finding of the Court:
The court found that there was no dishonest intention on the part of the accused-petitioner at the time of the initial transaction. The subsequent refusal to pay the balance amount did not convert the transaction into cheating. The court held that the matter was purely of a civil nature and quashed the criminal proceeding.
Issues: Whether the accused-petitioner had the dishonest intention to cheat the complainant at the time of the initial transaction.
Ratio Decidendi: The court held that the dishonest intention at the time of the initial transaction must appear to be clear. The subsequent conduct of the accused cannot make the transaction amount to cheating. The knowledge of the accused-petitioner that he had only a sum of Rs. 700/- in the Bank where as the Bank cheque issued by him on 7.9.81 was for a sum of Rs. 24.500/- also by itself does not lead to the inference that he had the dishonest intention of cheating the complainant at the time when be placed the order for supply of the goods or at the time when he accepted the goods.
Final Decision: The petition was allowed and the impugned order and the proceeding were quashed.
2. The opposite party filed a complaint petition in the Court of the Chief Judicial Magistrate Kamrup at Gauhati on 28.8.82 against the accused petitioner alleging that the complainant is a partner of M/S Mechfab Engg. Industries having its head office and place of business at Zoo Road Gauhati and being a firm manufacturing steel articles. On 3.7.81 the accused petitioner placed an order with the firm for supply of 27 nos. of G. I. Tank valued at Rs. 64 500/-in pursuance of which the accused petitioner paid an advance amount of Rs. 30 000/- to the firm by a Bank Cheque dated 3.7.81 which was duly encashed by the firm. Against the order of supply the complainant firm issued 27 nos. of M.S. Moulds for P.S.C. Poles and one no. of G.I. Tank by the bill dated 5.9.81. 14 nos. of P.S.C. Poles and 1 no. of G. I. Tank were accepted by the accused petitioner from the firm on 14.8.81.Then 13 nos. of M.S. Moulds P.S.C. Poles were supplied to the accused-petitioner on 5.9.81 by the firm which the accused-petitioner accepted. It is further alleged that a sum of Rs.10 000/- was subsequently paid by the accused petitioner to the complainant through a Bank Cheque which was also duly encashed. For the balance amount of the dues the accused-petitioner issued a Bank Cheque dated 7.9.81 against his account at the Central Bank of India Fancy Bazar Branch Gauhati. The complainant presented the cheque to the Bank on 7.9.81 but it was dishonoured by the Bank. This fact was brought to the notice of the accused-petitioner who however apologised for the firm having not received the payment of the cheque money. The accused-petitioner assured the complainant that the cheque would be honoured if presented to the Bank after a couple of days. The complainant again presented the cheque on 24.9.81 to the Bank but the Bank informed that the accused-petitioner by his letter dated 24.9.81 directed the Bank to stop payment to the complainant. On enquiry from Bank the complainant came to know that the accused-petitioner had only a sum of Rs. 700/- at his credit at the Bank. Thereafter the complainant demanded the sum of Rs. 24 500/- from the accused-petitioner on several occasions but the accused ultimately refused to make payment of the dues on 14.10.81 The allegation is therefore that the accused-petitioner with full knowledge that he had no money in the Bank to satisfy the dues of the complainant issued the cheque and thus had the intention to deceive the complainant. Thus the accused-petitioner dishonestly induced the complainant to deliver the articles with the intention to cheat the complainant.
3. The learned Chief Judicial Magistrate transferred the petition of complainant to the learned judicial Magistrate who examined the complainant on oath and finding that a prima-facie case u/s. 420 IPC was made out against the accused issued warrant of arrest against the accused with a bail of Rs. 5000/-
On 17.11.81 the accused-petitioner appeared before the court and was enlarged on a bail of Rs.3000/- with one surety.
The case remains pending in the court of the learned Judicial Magistrate who has not yet started trial.
4. It is to be seen whether any offence of cheating has been made out as per the complainant. In this examination u/s. 200 Cr. P.C. the complainant (the partner representing the firm) disclosed that he met the accused-petitioner 2/4 days after the Bank had issused him a memo showing the reason of not honouring the bank cheque and that ultimately on 14.10.81 the accused informed him that he would not make any payment. Learned counsel for the petitioner pointed out that the facts of the complaint do not constitute the ingredients necessary for the offence of cheating in any form. Section 415 IPC d
