To establish cheating, intention must exist from the inception of the contract; non-payment allegations alone do not suffice, and charges under Sections 406 and 420 IPC cannot coexist.

ORDER :

This criminal original petition has been filed to call for the records pertaining to the case in C.C.No.938 of 2025 on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai, for brevity “the Trial Court” and quash the same.

2. For the sake of clarity, the parties are referred to as per their rank in this criminal original petition.

3. The facts leading to the filing of this criminal original petition could succinctly be stated thus:

3.1 The respondent filed a private complaint against the petitioner alleging that he (respondent) was employed in Kings International Medical Academy run by the petitioner as an Accountant-cum-Manager; the petitioner was imparting medical courses in Philippines and the candidates who were aspiring to practise medicine were assured of practice in allopathic medicine in India; the nature of job of the respondent was to check the travel documents of those students and to follow up with regard to their stay in Philippines at the time of they pursuing their courses; during COVID-19 pandemic period, the respondent was given an additional responsibility of fetching students for the petitioner for which the petitioner promised the respondent to pay service charges on the basis of number of students he fetches for him; however, the students canvassed by the respondent and who underwent course in Philippines could not practise allopathic medicine in India since the course undergone by them in the institution run by the petitioner was not recognized by the National Medical Council; when questioned by the respondent, the petitioner threatened the respondent that he will not get his service charges and he will also be terminated from employment; upon being caused legal notice by the respondent, the petitioner stopped payment of salary to the respondent and also terminated the respondent from service; hence, the respondent filed the private complaint against the petitioner for the offences under Sections 406 , 420 and 506(II)IPC.

3.2. Challenging the aforesaid complaint, the accused has filed the present criminal original petition.

4. The learned counsel for the petitioner made the following submissions:

a. in order to make out a case of cheating, there should be an intention on the part of the accused right from the inception of the contract, whereas, in the case on hand, there is no allegation that the petitioner had an intention to cheat the respondent right from the beginning and a case of alleged non- payment of service charges and termination is projected as a case of cheating;

b. even if the allegations in the complaint are considered at their face value, at the most, a case can be made out only for breach of contract and a case of breach of trust cannot be made out;

c. the Supreme Court has, time and again, held that a case of cheating and criminal breach of trust cannot co-exist;

d. a mere allegation that the respondent was threatened of dire consequences will not make out a case for an offence under Section 506(II) IPC; and

e. when the complaint was filed by the respondent on20.01.2025 and the date of cognizance is 03.06.2025 which is after the kicking in of the BNSS , 2023, i.e., 01.07.2024, the Trial Court ought to have afforded an opportunity of hearing to the petitioner as mandated under the first proviso to Section 223 (1), ibid.

5. In support of his contention that in order to make out a case for the offence under Section 420 IPC, deception should be right from the time of inception and that the offences under Section 406 and 420 cannot co- exist, the learned counsel for the petitioner relied on the judgment of the Supreme Court in Delhi Race Club 1940 Ltd. & others vs State of Uttar Pradesh and another, (2024) 10 SCC 690

6. With regard to hi