Cheating allegations in commercial transactions require clear intent to deceive; mere non-payment of goods does not constitute a criminal offense.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

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 the prayer to quash and set aside the entire criminal proceeding as well as FIR of Govindpur P.S. Case No.67 of 2018 corresponding to G.R. Case No.1070 of 2018 arising out of Complaint Case No.2987 of 2015 registered for the offences punishable under Sections 420/406 of the Indian Penal Code.

3. Learned counsel for the petitioner submits that the investigation of the case is still going on and charge sheet has not yet been submitted in this case.

4. The allegations against the petitioner is that the petitioner claiming himself to be the Chairman-cum-Managing Director of M/s Vasavi Industries Ltd. approached the complainant for the purchase of coke on credit basis and made part payment of the coke supplied by paying small fractional amounts and an amount of Rs.1,04,36,479/- was due and payable against the petitioner and the co-accused persons which they were supposed to pay between July, 2014 to September, 2014 and though the co-accused persons issued five cheques in discharge of the said debt, but all the cheques were dishonored. A separate complaint case has been instituted in respect of the dishonor of cheques. There is further allegation that the accused persons of the case visited the office of the complainant and demanded further quantity of coke for their company as well as another company namely Mynah Industries Limited on false payment assurance and the complainant further on 23.11.2014 supplied coke to Mynah Industries Limited as well as M/s Vasavi Industries Ltd. and a sum of Rs.1,02,20,665/- became due against the petitioners and Rs.6,50,254/- become due and payable by the Mynah Industries Limited, but the accused persons of the case did not pay the said amount.

5. The complainant filed Complaint Case No.2987 of 2015 in the Court of learned Chief Judicial Magistrate, Dhanbad which upon being referred to police under Section 156(3) of Cr.P.C.; police registered Govindpur P.S.

Case No.67 of 2018 and took up investigation of the case which is going on at present.

6. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case ofS.W. Palanitkar & Others vs. State of Bihar & Another reported in(2002) 1 SCC 241 and submits that therein the Hon’ble Supreme Court of India in para-21 held that a mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.

7. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case ofG.V. Rao vs. L.H.V. Prasad & Others reported in(2000) 3 SCC 693 and submits that therein the Hon’ble Supreme Court of India held that Section 415 has two parts; while in the first part, the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing.

8. Learned counsel for the petitioner next submits that in this case, the alleged transaction took place in connection with a commercial transaction between the parties and undisputedly the amount due has already been paid by way of cheques, but it is the case of the complainant that the cheques have been dishonored, but admittedly the cheques were not issued by the complainant and the complainant/opposite party no.2 claims that he has instituted separate complaint case in respect of dishonour of cheques, so in view of t