ORDER : - This is an application under S. 561 - A of the Criminal P. C., submitted by one Amir Chand for quashing criminal proceedings pending against him in the Court of the Sub - Judge Magistrate Jammu. The complaint against him has been brought on the following facts :

2. That Amir Chand entered into an agreement with the complainant Lok Nath who is a partner of Magotra and Kohli Forest Lessees whereby he stipulated to supply labour to the complainant. The allegation in the complaint further is that the accused made a false representation that he possessed means to supply labour and took Rs. 1000/ - as an advance for this purpose. In addition to this, he took a further sum of Rs. 1000/ - as advance on 18th Baisakh 2008 and also Rs. 70/ - . The complaint further runs that the accused did not possess any labour nor had he ever any intention to supply it. He simply wanted to cheat the complainant of Rs. 2,070/ - thereby causing wrongful gain to himself and wrongful loss to the complainant. A preliminary statement was taken by the Magistrate in which the complainant simply stated that the accused had stipulated to supply labour in pursuance of which he took Rs. 2,070/ - , and that the accused did not supply labour as stipulated by him. The trial Court passed an order that there were grounds to suspect that an offence under S. 420, R. P. C., had been committed and ordered bailable warrants to be issued against the accused. The accused has now submitted an application under S. 561 - A, Criminal P. C., praying for the quashing of the said proceedings.

3. In his application under S. 561 - A, Criminal P. C., the accused has stated that the facts reveal a case of a civil nature but they have been forced to take a criminal complexion so as to make a criminal Court as an instrument for the recovery of debt or damages for breach of contract. His prayer is that the proceedings against him be quashed.

4. That the accused had entered into an agreement with the complainant for supply of labour is admitted by the accused. The simple question which therefore arises is as to whether the present case is one of a breach of contract or cheating? The main ingredients of an offence of cheating are that there should be deception of a person so as to fraudulently or dishonestly induce that person to deliver any property to any person or to consent that any person shall retain any property or intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. From this it follows that a wilful misrepresentation of a definite fact with intent to defraud would be cheating. Along with this, it has to be shown that the representation made was false to the accuseds knowledge at the time when it was made. An act would not come within the definition of cheating if the representation has turned out to be untrue at a future date.

5. From this discussion it would become clear that if it can be established that the accused made a false representation at the time when he entered into an agreement with the complainant, and induced him to part with money, then certainly this act would be cheating. But if the accused changed his mind at a later date and did not fulfil the contract, it would not be cheating at all. Now in the case before us we find that the accused had made a representation that he would supply labour to the complainant and in pursuance thereof he got two items of money at two different times. The complainant also in his statement does not say anything more than that. I think this would not come within the definition of cheating.

6. In CHIDAMBARAM CHETTIAR v. SHANMUGAM PILLAI, AIR 1938 Mad 129, it has been held that

"In the world of business, things are often done which are betrayals of confidence and deceptions which arouse moral indignation, but are nevertheless civil wrongs wh

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