The intention to cheat must be shown to exist at the inception of the transaction for seeking prosecution for the offences of cheating and breach of trust.

ORDER

1. The petitioner Haripal Singh has approached this Court by way of this petition under Section 482 Cr.P.C. for assailing the order dated 13.08.2021 passed by learned Addl. Sessions Judge, Sumerpur, District Pali dismissing the Revision (No.26/2017) preferred by the petitioner and affirming the order dated 10.04.2017 passed by learned Judicial Magistrate, Sumerpur taking cognizance against the petitioner for the offences punishable under Sections 420 & 406 IPC.

2. I have heard and considered the submissions advanced at bar and have gone through the material available on record.

3. Ms. Borana, Assistant to Shri Dhirendra Singh, learned senior counsel representing the petitioner submits that the order taking cognizance is absolutely illegal and bad in the eyes of law because the highest allegations of the complainant in the complaint are regarding dishonour of the cheque issued by the petitioner for a sum of Rs.55,000/- way back in the year 2015. Rather than proceeding under Section 138 of the N.I. Act, the complainant filed the belated FIR for the offences punishable under Sections 420 & 406 IPC. After investigation, the investigating agency, has submitted a negative final report finding the allegations of the complainant to be unsubstantiated. Learned counsel Ms. Borana further submitted that if the allegations of the complainant are considered to be true on the face of record, the necessary ingredients of the offences alleged are not made out and hence, the impugned orders are liable to be struck down. She thus, implored the Court to accept the misc. petition and quash the impugned orders as the same amount to abuse of process of Court.

4. Per contra, Shri Sabir Khan, learned counsel representing the complainant vehemently opposed the submissions advanced by the petitioner’s counsel and urges that the petitioner gave the cheque in question to the complainant which upon being presented was dishonoured. The complainant approached the petitioner in a bonafide manner and informed him regarding bouncing of the cheque on which, the petitioner fraudulently induced the complainant not to proceed under Section 138 of the N.I. Act and gave a false assurance that he would repay the amount. Thus, as per Shri Khan, the necessary ingredients of the offences alleged are made out and thus, the impugned orders do not warrant any interference of this Court.

5. After hearing the arguments advanced at bar and after going through the material placed on record and the impugned orders, it is clear that the complainant claims to have deposited the disputed cheque in his bank and alleges that same was dishonoured. However, neither any date of this procedure was elaborated by the complainant nor did he take any follow up action as per the N.I. Act regarding the so-called dishonour of the cheque. Apparently in these facts, the only permissible remedy available to the complainant would have been to file a complaint under Section 138 of the N.I. Act which he failed to do. He embarked on the wrong path by initiating criminal proceedings through an FIR for the offences punishable under Section 420 & 406 IPC which resulted into a negative final report with a conclusion of the case being false.

6. Even if all the allegations are accepted to be true on the face of record, admittedly, the accused has not been imputed the intention to cheat the complainant at the inception i.e., when the cheque was given to him. Law is well settled that for seeking prosecution of an accused for the offences of cheating and breach of trust, the intention to cheat must be shown existing at the inception of the transaction. Subsequent development of such intention would not create an element of criminality in the act complained of. As such, I am of the firm opinion that allowing criminal proceedings to be continued against the petitioner in this case for the offences under Sections 420 & 406 IPC would be nothing short of abuse of process of court. Ex-facie, the allegations set out