Deception is a necessary ingredient for the offence of cheating under Section 415 of the Indian Penal Code, and the elements of criminal breach of trust under Section 405 must be satisfied for the offence to be constituted.

By Court. - Heard the parties.

2. This application has been filed for quashing of the order dated 4.11.2000 passed in Complaint Case No. 763 of 2000 by the then Judicial Magistrate 1st Class Jamshedpur whereby and whereunder cognizance of the offence punishable under Sections 420, 379 and 406/34 of Indian Penal Code has been taken against the petitioners.

3. Before adverting to the submission advanced on behalf of the parties, facts giving rise to this application need to be taken notice of.

4. It is the case of the complainant that he after purchasing a truck bearing No. HR 38-7260 has given it to petitioner No.1-Regional Manager of M/s. Precious Carrying Corporation Ltd., Jamshedpur for transporting the consignment from Jamshedpur to Kalambali, Maharashtra on a freight of Rs.36.200/-. That truck in course of coming to Malambali got stuck up at Nagpur on account of some mechanical defect. information of which was given to the complainant who on 25.12.1999 permitted the petitioners to arrange another truck and to take consignment to its destination and also asked them to return the truck but the petitioners did not return the truck rather went on plying it and earned Rs.800 per day and thereby the petitioners retained it till 10.8.2000 when it was repossessed by the Financer.

5. On such complaint, cognizance of the offence as alleged, was taken vide order dated 4.11.2000, which is under challenge.

6. Mr. P.P.N. Roy, learned senior counsel for the petitioners, submits that when the truck got stuck up at Nagpur, information was given immediately the complainant but he did not take any decision in the matter of transaction of consignment to Kalambali. After passing of so many days, the complainant on 25.12.1999 asked the petitioners to arrange for another truck and to transport the consignment to Kalambali for which assurance was given that the complainant would bear expenses for it, but inspite of demand being made of the expenses incurred by the petitioners, it was never paid and that apart, the petitioners had already paid a sum of Rs.32,000/- as against the total amount of freight of Rs.36,320 and in that circumstance, it is the complainant who cheated the petitioners whereas the petitioners have never cheated the complainant and thereby the order taking cognizance is quite bad and is fit to be set aside.

7. As against this. Mr. S.N. Prasad, learned counsel for the opposite party No.2-complainant submits that it is true that the truck got stuck up at Nagpur and when information of it was given, the complainant asked the petitioners to arrange for a truck and to transport the consignment, to its destination but at the same time. he asked the petitioners to return the truck but instead of returning it he went on using the said truck by which he earned Rs.800 per day till 10.8.2000 when it was repossessed by the Financer and thereby the petitioners not only committed offence under Section 420 of Indian Penal Code but also under Section 406 of Indian Penal Code by retaining the truck from 25.12.1999 to 10.8.2000 and under this situation, the order taking cognizance never warrants to be interfered with.

8. In the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegation made in the complaint does constitute offence of cheating and misappropriation or not?

9. The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows :

"Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived 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, is said to cheat".

10. From its reading it appears that following