The central legal point established in the judgment is the requirement of establishing fraudulent or dishonest intention at the beginning of a transaction to constitute the offence of cheating under Section 420 RPC.

JUDGMENT :

1. The petitioner has challenged order dated 11.05.2017 passed by Judicial Magistrate, 1st Class, Kulgam, whereby criminal complaint filed by the petitioner against the respondent has been dismissed without issuing process against the respondent.

2. It appears that the petitioner had filed a criminal complaint against the respondent alleging commission of offences under section 420 and 506 RPC. In the complaint, it was alleged that in April, 2015, the respondent/accused approached the petitioner/complainant and offered to purchase bus bearing No. JK03-1349, owned by the petitioner. It is averred that the sale consideration of the bus was fixed as Rs. 5.00 lacs and the respondent paid an amount of Rs. 5,000/- in cash to the petitioner. It is further averred that the respondent issued two cheques, one amounting to Rs. 1.00 lac and another amounting to Rs. 1.50 lacs in favour of the petitioner and promised to liquidate the balance consideration amount of Rs. 2.45 lacs within a period of two months. Accordingly, the petitioner delivered possession of the vehicle to the respondent. It is further averred that the cheque for an amount of Rs. 1.00 lac was encashed by the petitioner, but the other cheque for an amount of Rs. 1.50 lacs was returned unpaid. The petitioner is stated to have approached the respondent to liquidate the balance amount of sale consideration but the respondent kept on making false promises and did not liquidate the balance amount and instead extended threats to the petitioner. It is alleged in the complaint that the respondent, with a dishonest intention, has cheated the petitioner and has deprived him of the vehicle in question, without paying the balance amount of sale consideration. Thus, it is alleged that the respondent has committed the offence of cheating.

3. The learned trial Magistrate recorded the preliminary statement of the petitioner and his witness in which the allegations made in the complaint were reiterated by them. Thereafter vide order dated 16.03.2017, the learned trial Magistrate, after taking cognizance of the case, deferred the issuance of process against the respondent and directed SHO, P/S, Kulgam, to conduct investigation under section 202 of the Cr.P.C. It seems that this order came to be challenged by the respondents by filing a petition under section 561-A of J&K Cr.P.C. bearing No. 50/2017 before this Court. The said petition was disposed of by this Court with a direction to the learned Magistrate to consider the application, if any, filed by the petitioner (respondent herein) for dropping of the proceedings and to pass appropriate orders on the strength of the claim made in the application with supportive material.

4. Pursuant to the aforesaid order passed by this Court, it seems that the respondent moved an application for dropping of proceedings and dismissal of complaint before the trial Magistrate, who, after hearing the parties, passed the impugned order dated 11.05.2017, whereby he has refused to issue process against the respondent and dismissed the complaint by holding that there is no sufficient material on record to proceed against the respondent/accused.

5. Notice of this petition was given to the respondent and he put in appearance before this Court through counsel, Mr. Zahoor Ahmad Shah, Advocate, but for the last couple of hearings nobody has been appearing on behalf of the respondent and, as such, the matter has been taken up for consideration in the absence of respondent.

6. I have heard learned counsel for the petitioner and perused the material on record, including the record of the trial court.

7. It has been contended by learned counsel for the petitioner that the impugned order has been passed by the learned trial Magistrate without applying his mind and that the said order is against the mandate of law. It has been further contended that the observation of the learned trial Magistrate that dispute between the petitioner and respondent is purely of civil n