Mere failure to keep a promise does not constitute the offence of cheating under IPC 420/34.

JUDGMENT :

B.P. Ray, J. - The Petitioners have assailed the order of cognizance taken by the learned S.D.J.M., Bhubaneswar in ICC Case No. 206 of 2007 on the basis of a complaint filed by the opp.party. Learned Magistrate by the impugned order dated 2.2.2007 has taken cognizance of the offence u/s 420/34, IPC and has issued summons to the accused persons for which the Petitioners have filed this application Under Sections 482, Code of Criminal Procedure.

2. The complaint petition filed by the opp.party has been enclosed as Annexure-6 to this petition. From the averments made in the complaint petition it would appear that the complainant had purchased a Skoda car from the Petitioners from their Bhubaneswar Show Room on 28.10.2006. It was alleged that while purchasing the said car the Petitioners had made certain inducements/promises to the complainant for which the complainant agreed to purchase the car in question. According to the complainant, the Petitioners had promised to give a cash discount of Rs. 30,000/- on the prevailing quoted sale price, which the complainant was yet to receive and further the Petitioners had promised to give the complainant a Multi CD changer Music system having remote control of a branded Company which was not provided at the time of delivery and instead, a music system of cheaper quality without any remote control facility was given. The accessories as promised by the Petitioners were not provided to the complainant. According to the complainant, the Petitioners had not given the invoice of sale of the car in the name of the complainant, on the date of delivery but was given at a later point of time for which the complainant had to incur an additional cost for registration of the car. According to the complainant, the accused persons had promised to exchange the car with future model of the said company for which written documents though promised were not provided. The complainant also alleged that the Petitioners had also refused to honour their commitment of taking Opel car of the complainant at an exchange offer of pre-designated price of Rs. 2.5 lakhs, but offered at a lower price of about Rs. 1.5 lakhs as maximum and thereby they committed criminal breach of trust. According to the complainant, the entire transaction of selling new Skoda Car by the Petitioners to the complainant was based on promise of the Petitioners to exchange the Opel Corsa Car of the Petitioner along with the differential value with that of the New Skoda Car. According to the complainant, though he had purchased the car in question from the Petitioners, yet the Petitioners refused to keep their compromise and thereby cheated the complainant. On the basis of these averments the complainant having been filed, the initial statement of the complainant was recorded on 18.1.2007. After recording of the initial statement of the complainant, the complainant filed a petition for time for which the learned Magistrate granted time till 22.1.2007 for further enquiry. It appears that the case was taken up on 2.2.2007 and no enquiry was undertaken inasmuch as no witness was examined on behalf of the complainant. On that date learned Magistrate on perusal of the complaint petition, initial statement of the complainant took cognizance of the offence u/s 420/34, IPC by the impugned order. The said order is impugned in this application u/s 482 Code of Criminal Procedure.

3. I have heard Mr. Gajendra, learned Senior Counsel for the Petitioners and Sri Roy, learned Counsel appearing for the opp.party. In the instant case learned Magistrate has taken cognizance of the offence u/s 420, IPC. Cheating is defined in Section 415, IPC and is punishable u/s 420, IPC. Section 415, I.P.C. is set out below for reference:

415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the per