A mere breach of contract does not constitute cheating or criminal breach of trust without evidence of initial deceptive intent or dishonest misappropriation.

JUDGMENT :

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal proceeding arising out of Complaint Case No.336 of 2016 including the order taking cognizance dated 04.04.2017 passed by learned Judicial Magistrate-1st Class, Bokaro whereby and where under the learned Judicial Magistrate-1st Class, Bokaro has found prima facie case for the offences punishable under Sections 420/406 of the Indian Penal Code against the petitioner.

3. Learned counsel for the petitioners submits that the instant Cr.M.P. is not pressed on behalf of the petitioner No.1 namely R.N. Singh @ Ram Nath Singh as he has died.

4. In view of this submission of the learned counsel for the petitioners, this Cr.M.P. is rejected as not pressed in respect of the petitioner No.1 namely R.N. Singh @ Ram Nath Singh.

5. The allegation against the petitioner No.2 is that the petitioner No.2 being a partner of M/s R.N. Singh and Company was taking petrol and diesel on the basis of the credit note, but did not pay the outstanding dues. Earlier, a complaint case involving the offence punishable under Section 138 of N.I. Act was instituted by the complainant, consequent upon a cheque which was issued in discharge of the part of the balance amount was dishonoured. But, subsequently upon payment of the part of the outstanding amount, earlier complaint case was withdrawn upon the promise of the petitioner No.2 to pay the entire amount but even then the petitioner No.2 going back from his promise, is not paying the money.

6. Learned counsel for the petitioners relies upon the judgment of Hon’ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal & Another reported in (2007) 7 SCC 373 paragraph-15 of which reads as under:-

“15. In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any intention on the part of the appellant herein to commit an offence under Section 417 of the Penal Code.”

and submits that therein it has been reiterated by the Hon’ble Supreme Court of India that only because a cheque was dishonored the same itself would not mean that the accused person has cheated the complainant.

7. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Vesa Holdings Private Limited & Another vs. State of Kerala & Others reported in (2015) 8 SCC 293 paragraph-12 of which reads as under:-

“12. From the decisions cited by the appellant, the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code, 1860 can be said to have been made out.” (Emphasis supplied)

and submits that in the said case, the Hon’ble Supreme Court of India has reiterated the settled principle of law that even in a case of failure on the part of the accused to keep his promise, in the absence of culpable intention at the time of making initial promise, no offence under Section 420 of the Indian Penal Code, 1860 can be made out.

8. Learned counsel for the petitioner