Point of law : The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 I.P.C.. In order to bring a case for the offence of cheating it is not merely sufficient to prove that a false representation had been made. It is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

JUDGMENT :

1. Heard Shri Krishna Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State-respondents and perused the record.

2. By means of the instant application under Section 482 of the Criminal Procedure Code the applicant-Sanjay Gulati S/o. Shri Mahendra Gulati has prayed for quashing of the entire proceedings of Complaint Case No. 419 of 2006 under Section 420, 506 I.P.C. in Police Station Civil Lines, District Moradabad pending in the Court of Civil Judge (Junior Division), Moradabad, Court No. 2.

3. The facts of the case as borne out from the record are that the complainant Kamal Singh, who has been arrayed as the opposite party No. 2 in the application under Section 482 Criminal Procedure Code, filed a complaint dated 23-06-2005 under Section 156 (3) of the Criminal Procedure Code alleging that he had taken a loan from Syndicate Bank for his business of cycles and had submitted a quotation of “Sandeep Traders, Jail Road, Moradabad”. On 30.05.2005 a cheque number 757645 amounting to Rs.30,000/- was issued in the name of Sandeep Traders but Sandeep did not give the goods to the complainant and he said that he will give the same as and when the same will be available and he obtained signatures of the complainant for obtaining payment from the Bank. Thereafter, the second cheque bearing number 054830 dated 09-06-2005 for Rs.20,000/- was given by the Bank. Sandeep kept on saying that he will give the goods. On 20.6.2005, the complainant went to Sandeep, the complainant accompanied by his brothers Charan Singh, Vipin Bishnoi and Mohit Bishnoi went to Sandeep, when Sandeep said that the entire arrears stood settled and he would not give the goods and threatened the complainant, He has complained that Sandeep wants to usurp the complainant's money fraudulently.

4. The statement of complainant was recorded under Section 200 Criminal Procedure Code and the statements of witnesses Charan Singh and Vipin Bishnoi were recorded under Section 202 Criminal Procedure Code and on 17-01-2007, the Additional Chief Judicial Magistrate, Moradabad, Court No. 2 passed an order summoning Sandeep Kumar for being tried for offences under Sections 420, 506 Indian Penal Code.

5. Aggrieved by the complaint and the summoning order, the applicant “Sanjay Gulati S/o. Shri Mahendra Gulati” who is the proprietor of “Sandeep Traders” - with which the complainant Kamal Singh was having business relations, has approached this Court by filing the instant application under Section 482 Cr.P.C.

6. In the affidavit filed in support of application, the applicant has stated that he owns a shop of cycles and cycle parts and he is running his business in the name of “Sandeep Traders”. The allegations against him are totally false and frivolous and are designed only to harass him. He has already delivered the goods in respect of which cheque numbers 757645 and 054830 were issued and the opposite party No. 2 has received the goods and made endorsements of receiving on the bills, a copy whereof has been filed as Annexure No. 3 to the affidavit filed in support of the application under Section 482 Criminal Procedure Code. The applicant has further stated that the complainant-opposite party No. 2 has taken a commercial loan of Rs.50,000/- from Syndicate Bank, Moradabad and when he failed to deposit the same, the Bank issued a notice for recovery of the amount and in order to take undue advantage and to delay the recovery proceedings, the opposite party No. 2 has filed the complaint. From a perusal of the complaint no offence under Sections 420 and 506 I.P.C. is made out against the applicant-Sanjay Gulati S/o. Shri Mahendra Gulati.

7. On 12-02-2007, this Court was pleased to pass the following order in this case: -

“Issue notice to opposite party no. 2 to file counter affidavit within six weeks.

Learned A.G.A. may also file counter affidavit within the same period.

Rejoinder affidavit may be filed within two weeks thereafter. List after expiry of the afor