The absence of initial dishonest intention precludes establishing charges of cheating under IPC, while misappropriation can be established if the accused received property without payment.

JUDGMENT & ORDER :

KAUSHIK GOSWAMI

Heard Mr. Y. Kothari, learned counsel appearing for the petitioner. Also heard Mr. S. Bharali, learned counsel appearing for the respondent No. 1 and Mr. P.S. Lahkar, learned Additional Public Prosecutor appearing for the State respondent.

2. This is an application under Section 378(3) and Section 378(4) of the Cr.P.C. seeking leave to file appeal against the impugned judgment and order dated 16.05.2016 passed by the Court of Judicial Magistrate First Class, Kamrup (M), Guwahati (hereinafter referred to as the trial Court) whereby the accused/respondent No.1 was acquitted under Section 420 and 506 of IPC.

3. The brief facts of the case is that the petitioner/complainant firm had filed a complaint case before the trial Court under Sections 420/403/422/424/42/506 of the IPC against the accused/respondent No. 1 stating, inter-alia, that on 20.05.2004, the accused/respondent No.1 accompanied by one person namely Sarvan Beniwal, who was a broker, had approached the Manager of the petitioner/complainant firm and expressed his intention to do regular business with the complainant by purchasing goods on wholesale basis and promised to pay the price of the goods within a fortnight on receipt of such goods. It was further alleged that on such assurance, the petitioner/complainant firm delivered 850 (Eight Hundred and Fifty) bags of sugar to the accused/respondent No.1 on 20.05.2004 and that the same were loaded in two trucks and dispatched to the accused/respondent No.1 and that the value of the sugar supplied by the petitioner/complainant firm along with the insurance charge thereon was about Rs.7,13,879 (Seven Lakhs Thirteen Thousand Eight Hundred and Seventy Nine Rupees). In support of that, two bills being numbered 90 and 91 were also annexed which were exhibited as exhibit 1 and 2. It is further alleged that after receipt of the goods, the accused/respondent No.1 neither came to the petitioner/complainant firm nor made any contact with them and that several attempts were made on various occasions by the petitioner/complainant firm regarding payment against the said supply but the accused/respondent No.1 deliberately and intentionally avoided making any contact with the petitioner/complainant firm just to escape from the lawful dues he owed to the complainant firm. It was further alleged that the petitioner/complainant firm firm even sent one of its representatives to Agartala to meet the accused/respondent no.1 concerning the transaction but to his utter surprise, he found that the accused/respondent No.1 had removed the signboard of his shop from his point of business. It was further alleged that the representative somehow managed to trace out the accused/respondent No.1 on 19.09.2005 but the accused/respondent No.1 straightway refused to make any payment and threatened the representative of the petitioner/complainant firm with dire consequences. Hence, finding no other alternative, the petitioner/complainant firm instituted a complaint case against the accused/respondent No.1.

4. Thereafter, the said complaint case was registered as C.R. Case No. 6220/2005 before the trial Court. The trial Court examined the petitioner/complainant firm under Section 200 of Cr.P.C and upon finding sufficient materials to proceed against the accused/respondent No.1, took cognizance under Section 403/420/506 of IPC and issued process against the accused/respondent No.1. Accordingly, the accused/respondent No. 1 entered appearance and the trial commenced. Thereafter, the trial Court framed charge under Sections 403/420/506 of IPC against the accused/respondent No.1

5. After framing of the charge, the respondent No.1 claimed to be tried and the accused/respondent No.1 adduced prosecution witnesses thereafter, statement of defence under Section 313 of Code of Criminal Procedure was recorded by the trial Court and accused/respondent No.1 expressed his willingness to adduce defense witness and the accused/respondent No.1 exam