Mere loan default does not amount to cheating under IPC unless fraudulent intent is proven from the inception of the transaction.

JUDGMENT :

Anil Kumar Choudhary, J.

Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of BNSS, 2023 with the prayer for quashing and setting aside the order dated 22.07.2024 passed in Cr. Revision no. 87 of 2024 by learned Sessions Judge, Dhanbad whereby and whereunder, learned Sessions Judge, Dhanbad dismissed the revision application which was preferred against the order dated 22.02.2024 passed by learned JMFC, Dhanbad and also prayer has been made for setting aside the order dated 22.02.2024 passed by JMFC, Dhanbad in C.P. case no. 14686 of 2023 by which, learned Magistrate did not take cognizance of the offences and dismissed the C.P. case no. 14686 of 2023 under Section 203 of the CrPC.

3. The brief fact of the case is that the petitioner filed Complaint Case no. 14686 of 2023 in the court of learned JMFC, alleging therein that the opp. Party no. 2 herein, who was proposed accused person of the complaint, has taken a loan of Rs. 6,00,000/- from the complainant with the promise of alluring returns but did not repay the loan. Learned JMFC considered that this is a simple case of advance of loan and therefore, is a case of civil in nature and in the absence of the essential ingredient to constitute the offence of cheating and criminal breach of trust; moreover as the element of fraud from the inception, was not alleged, hence, relied upon the judgment of the Hon’ble Supreme Court of India in the case of M/s Indian Oil Corporation Vs. M/s NEPC India Ltd. And Ors. Reported in (2006) 6 SCC 736 wherein it was observed by the Hon’ble Supreme Court of India, that when the matter is essentially of civil nature and has been given a cloak of criminal offence, the criminal proceedings are not a short cut of other remedies available in law and by thus considering, came to the conclusion that no case is made out constituting the offence punishable under Section 420 or 406 of IPC and dismissed the complaint under section 203 of CrPC.

4. Being aggrieved by the said order, the petitioner filed Cr. Rev. No. 87 of 2024 before learned Sessions Judge, Dhanbad and learned Sessions Judge, considered that nowhere in the complaint, it has been mentioned that there was any intention of cheating by the opp. Party no. 2 which is a condition precedent for the offence punishable under Section 420 of IPC and as there is no material in the record pointing out to the fact that any property was entrusted to the opp. Party no. 2, which he dishonestly converted to his own use, the offence punishable under Section 406 of IPC is not made out and did not find any infirmity or illegality in the order dated 22.02.2024 impugned before it and dismissed the Cr. Revision.

5. It is submitted by learned counsel for the petitioner relying upon the judgment of the Hon’ble Supreme Court of India in the case of Indian Oil Corpn. Vs. NEPC India Ltd. And Ors. , reported in (2006) 6 SCC 736 that Illustration (f) of the Section 415 of the IPC, envisages that if A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money and A is not intending to repay it, A cheats and submits that as the petitioner, admits taking of money from the complainant but he is taking plea that he has repaid the money to the complainant, so this amounts to cheating. It is next submitted that in that the Hon’ble Supreme of India Court also relied