The intention to cheat is the key element in establishing the offence of cheating under Section 415 of the IPC, and evidence is crucial in determining guilt or innocence.

JUDGMENT :

AMOL RATTAN SINGH, J.

1. By this petition, the petitioners seek quashing of FIR no. 122 dated 20.10.2018, registered at Police Station Division no. 4, Patiala, for the alleged commission of an offence punishable under Section 420 of the IPC.

2. Arguments have been addressed at length by learned counsel for the petitioners, as also by learned counsel respondent no. 2, i.e. the complainant in the FIR. The matter actually arises out of a cheque stated to have been issued by the petitioners to the complainant but which the learned counsel for the petitioners denies was actually ever issued to the complainant at all, with him further submitting that in any case proceedings under the provisions of Section 138 of the Negotiable Instruments Act, 1881, already having been instituted against the complainant, the FIR in question would not lie at all and therefore it deserves to be quashed.

3. He has relied upon essentially three judgments in that context, from which he has read out the relevant passages for this court, i.e. (i) Hridya Ranjan Pd. Verma and Others vs. State of Bihar and Another, (ii) Maripalli Mahirathnam Gupta vs. State of Andhra Pradesh, (iii) J. Vidya Sagar vs. State of Andhra Pradesh and Another.

4. Learned counsel submits that even in terms of the judgment of the Supreme Court in Hridya Ranjan Pd. Vermas' case, there could have been no intention to cheat the complainant because admittedly, even as per the FIR, the complainant gave a cash loan of Rs. 6.5 lakhs to the petitioners in the month of November, 2017, and only thereafter, when the loan was not returned/the complainant was not inducted as a partner in any business to be run jointly by them, he approached the petitioners for return of the money when the chqeues in question were issued (as per the complainant though denied by the petitioners); and consequently, that being a subsequent conducts; no element of cheating as defined under the provision of Section 415 of the IPC, is made out.

5. He specifically points to paragraphs 15 and 16 of the said judgment, which read as follow (after reproducing Section 415 of the IPC):-

“15. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do in the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.”

6. As regards the applicability of the aforesaid judgment, Mr. Mehndiratta, learned counsel for the complainant, on the other hand points to Annexure R2/4 with the reply of respondent no. 2 (complainant in the FIR), which is seen to be a copy of a letter addressed by petitioner no. 1 to the Branch Manager of the Oriental Bank of Commerc