To establish cheating under Section 420 IPC, there must be evidence of dishonest intent from the inception of the agreement; mere breach of contract does not constitute a criminal offense.

Order :

Gautam Kumar Choudhary, J.

Instant criminal revision is preferred against the order dated 22.12.2022 passed in M.C.A. No.2720 of 2022 arising out of Kenduadih P.S. Case No.05 of 2021 for the offence registered under Sections 417 , 420, 120B, 406, 506/34 of the INDIAN PENAL CODE , whereby and whereunder the petition for discharge has been rejected.

2. Briefly stated prosecution case as disclosed in the FIR lodged on 07.01.2021, is that the informant was a resident of District Giridih and was in the business of trading. It is said that the petitioner and one Kamal Kumar Mittal approached him on behalf of their business trade under the name of Kamal Traders. In pursuant to the agreement, they started purchasing mustard oil from the complainant, which they used to sell from their retail outlet. On one pretext or the other, the payment of mustard oil supply was never made and after much entreaty, on 22.06.2020, a payment of Rs.2,00,000/- was made. Thereafter, they kept on taking the delivery of oil, but no payment was made. Consequently, in a meeting on 10.08.2020, they admitted a due of Rs.24,00,000/- and to repay the said amount, they gave them the possession of his house situated at Mauza Damodarpur, Khata No.46, Plot No.770, area 05 Katha, under a term that if the said amount was not paid by 13.11.2020, the informant will become the owner of the said property. When the petitioner refused to execute the sale deed after default in making payment, instant case has been filed.

3. It is submitted by the learned counsel on behalf petitioner that even if the allegation as made in the FIR is assumed to be true, no criminal case will be made out. Petitioner had no intention of deception since inception, that will be evident from the fact that initial payments were made, and further in order to repay the outstanding amount, the petitioner also entered into an agreement handing over his house to the complainant. On these facts and situations, the petitioner is entitled to be discharged as no offence of fraud will be made out. Reliance is placed on Manish Versus State of Maharashtra & Another, [SLP (Criminal) No.10931 of 2022].

4. It is submitted by the learned counsel on behalf of opposite party no.2 that there was intention to deceive from the very beginning as huge consignment of oil had been taken by the petitioner without any intention to make payment for the same. So far, the agreement of sale is concerned, it was conditional in nature that if the said amount was not paid within stipulated time, then the petitioner was liable to execute the sale deed with respect to the said property. Neither the payment was made nor the sale deed was executed which brings the case within the four corners of mischief under Section 420 of the IPC. It is further submitted that the informant has efficacious civil remedy for the commercial loss suffered by him.

5. Having considered the submissions advanced on behalf of both sides, it is evident from the FIR itself that both the parties were admittedly in a trade transaction which commenced in 2019, which came to a grinding halt in 2020, when the outstanding amount was not paid against oil supplied by the informant to the petitioner. It has come in the FIR itself that Rs.2,00,000/- was paid and thereafter, the supply was resumed to the petitioner. The very fact that the petitioner entered into an agreement of sale of house, albeit with a condition of re-payment, goes to show that the dishonest intention was not there to deceive the informant of the case. Law is settled that, unless the accused is actuated by a criminal intention to deceive from the very inception, no offence of cheating will be made out. Mere inability to pay unaccompanied by a criminal intent, shall not make out the offence.