The necessity of proving deceiving from the initial stage for section 420 IPC and the requirement of fraudulent or dishonest intention at the time of making a promise for constituting an offense of cheating.

JUDGMENT :

Heard Mr. N.K. Pasari, the learned counsel for the petitioners, Mr. Manoj Kumar No.3, the learned State counsel and Mr. Shankar Lal Agarwal, the learned counsel for the O.P.No.2.

2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. The petitioners have filed this petition for quashing the entire criminal proceeding in connection with Sakchi P.S.Case No.110/2018, corresponding to G.R. No.1617/2018, registered under sections 406, 420 and 34 of the IPC.

4. The complaint case was filed stating therein that in order to facilitate its trade, the petitioner no.1 is required to appoint various distributors on a ‘non-exclusive basis’ with a consideration and policies which are mutually agreed between the parties, that respondent no.2 was appointed as one of the distributor for the sale and operations for markets in Jamshedpur and surrounding markets, that it is an industry wide practice to accept security deposit from the distributor for the due performance of the business relationship, accordingly, petitioner no.1 accepted security deposit of Rs.1,25,000/-, that during the business arrangement between the petitioner and the respondent no.2, the petitioner has observed several discrepancies in the operations and trading manner of the respondent, which was duly pointed out to the respondent no.2, however, respondent no.2 miserably failed to perform, that knowing the business performance of the respondent no.2, petitioner still provided ample opportunities for respondent no.2 to better its operations, but all efforts went in vain, that respondent no.2 issued the resignation letter dated 31.08.2016 to terminate the business relation and also raised claim and request to refund the security deposit, for sake of brevity, let this letter be referred to as ‘the said resignation letter’, that the said resignation letter was duly accepted by petitioner no.3 and it was verbally informed to the respondent no.2 that all claims would need supporting documents, that the petitioner no.1 refunded the security deposit amount of Rs.1,25,000/- to the respondent no.1 along with interest on the same of Rs.93,606.58, that for the balance amount of the claim, for sake of brevity be referred to as ‘part claim’ the respondent was communicated to share valid supporting document which are yet to be received inasmuch as till date the respondent no.2 has not provided any valid supporting for the such claims; instead, respondent no.2 issued legal notice through one advocate Kailash Kumar Agarwal dated 14.4.2017, that the petitioner no.1’s sales personnel met with the respondent no.2 and reiterated to share the claim supporting documents, which respondent no.2 miserably failed again.

5. The learned court referred the case under section 156(3) Cr.PC for proper investigation by the police. The investigation has not been completed as yet as on 24.08.2018 interim order has been passed in this case by this Court.

6. Mr. Pasari, the learned counsel for the petitioners submits that this is a case arising out of a commercial transaction wherein the criminal proceeding has been initiated against the petitioners. He submits that no case under sections 406/420 IPC are made out as the ingredients of these sections are absent in the complaint. He submits that in the complaint petition itself the respondent no.2 has admitted that the petitioners have paid security deposit of Rs.1,25,000/- with interest and Rs.93,606.58p paid to the complainant and assured to pay rest amount later. The complainant asked him and demanded to pay the rest amount of Rs.2,09,553/- to the accused person. Mr. Pasari, the learned counsel submits that a total sum of Rs.2,18,606/- has been paid. He submits that this carries interest amount on the security depo