IMPORTANT POINT
Quashing of complaint--Cheating--In the absence of the intention to dishonestly induce, action would not attract the provisions of Section 420 of the IPC.
Cheating-In the absence of mens-rea allegation of cheating cannot be sustained.

Mahesh Grover, J.

1. The petitioner has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the complaint dated 26.3.1993 (Annexure P.1) filed by the respondent under the provisions of Sections 406, 420, 465, 467 and 471 of the Indian Penal Code as also to quash the order dated 20.8.1993 (Annexure P.2) by which the petitioner has been summoned under the provisions of Section 420 of the Indian Penal Code.

2. The petition has been filed by M/s Sathyam Roller Flour Mills (P) Ltd., P.O. Parassinikadavli, Kannur (Kerala) through its Managing Director with the aforesaid prayer.

3. The respondent, which is a partnership firm dealing in the business of commission agents handling food grains for import and export within the State of Punjab as also throughout the country, filed a complaint Annexure P.1 with the allegations that the petitioner had purchased 510 bags of wheat at the rate of Rs. 390/- per quintal from the complainant through the agency of a canvassing agent M/s S.V.K. Brothers, Madras vide Bill No. 95 dated 28.9.1992. The total amount of the transaction was Rs. 1,91,176/-. The bargain was to make the payment conditionally through bank and the respondent had accordingly sent RRs through the bank for Rs. 95,588.00 each through Punjab National Bank, Bathinda to Canara Bank at Cannore, Kerala. The petitioner paid one of the Hundis and it was alleged that he dishonestly and fraudulently did not honour the Hundi with ulterior motive to deprive the complainant of the payment of Rs. 95,588.00. The said transaction had been executed in this manner on the representation made by M/s S.V.K. Brothers, the canvassing agent.

4. It was further alleged in the complaint that the petitioner had misrepresented that he was unable to pay the Hundi amount and demanded free RRs or indemnity bond of the railways. The indemnity bond was accordingly issued by the respondent, but despite that, the payment was not made except for a partial payment of Rs. 31,770/- made vide demand draft No. 387911 drawn on the State Bank of India, which was duly received by the complainant.

5. Broadly, on the aforesaid allegations the complaint was filed and the petitioner was summoned subsequent thereto vide orders dated 20.8.1993 (Annexure P.2) on record.

6. The petitioner has assailed the aforesaid order to contend that a perusal of the complaint did not disclose the commission of any offence as the transaction had concededly taken place, even though the petitioner was reluctant to enter into such a transaction with the respondent which is borne out from Annexures P.3 to P.9. Having regard to this, it cannot be said that there was any overt act of inducement so as to satisfy the ingredients of Section 420 of the Indian Penal Code. That being so, no offence could have been said to have been committed by the petitioner. Reliance was placed on S.W. Palanitkar and others v. State of Bihar and another, 2001(4) RCR(Criminal) 572 : AIR 2001 Supreme Court 2960. Besides, even if the entire complaint is taken to be correct, it could at best reveal a civil liability suffered during the course of the business. That apart, the complaint has been filed without alleging that Mr. M.L. Gupta, Managing Director was responsible for the affairs of the company which is the pre-requisite for maintainability of a complaint. The last contention raised by the learned counsel for the petitioner was that the Court before whom the complaint had been filed lacked jurisdiction as the entire transaction had been completed in Madras. That being so, the Court at Bathinda could not have taken cognizance of the same.

7. On the other hand, the aforesaid contentions were sought to be refuted by the learned counsel appearing for the respondent who contended that the complaint and the consequent summoning order were perfectly justifiable as the petitioner had defaulted in making the payment and had misrepresented through the canvassing