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1988 Supreme(MP) 156
High Court Of Madhya Pradesh
K. L. SHRIVASTAVA
RADHAKISHAN DALMIA - Appellant
Versus
NARAYAN - Respondents
M. CRI. C. 1674 Of 1986
Decided On : 08/02/1988
C.R.Khanvilkar, G.S.SOLANKI, R.S.Garg
The issuance of a post-dated cheque with the intention that it would not be cleared on the due date, coupled with subsequent partial payments, constitutes a prima facie case of cheating under Section 420 IPC.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 204 - CHEATING - DISHONEST INTENTION - POST-DATED CHEQUE - ISSUANCE - SUBSEQUENT PARTIAL PAYMENT - EFFECT - OFFENCE OF CHEATING - INGREDIENTS - PROOF - STANDARD OF PROOF AT DIFFERENT STAGES OF CRIMINAL CASE - DISTINCTION BETWEEN CIVIL AND CRIMINAL LIABILITY.
Fact of the Case:
The petitioner issued a post-dated cheque to the non-applicant in exchange for cotton purchased on credit. The cheque was dishonored upon presentation, and the petitioner made partial payments towards the price of the cotton. The non-applicant filed a complaint against the petitioner for cheating under Section 420 of the Indian Penal Code (IPC). The Magistrate took cognizance of the complaint and issued process against the petitioner under Section 204 of the Code of Criminal Procedure (CrPC).
Finding of the Court:
The court held that the issuance of the post-dated cheque with the intention that it would not be cleared on the due date, coupled with the subsequent partial payments, constituted a prima facie case of cheating under Section 420 IPC. The court found that the material on record was sufficient to form an opinion that there were sufficient grounds for proceeding against the petitioner.
Issues: 1. Whether the issuance of a post-dated cheque with the intention that it would not be cleared on the due date, coupled with subsequent partial payments, constitutes a prima facie case of cheating under Section 420 IPC? 2. What is the standard of proof required at different stages of a criminal case?
Ratio Decidendi: 1. The court held that the issuance of a post-dated cheque with the intention that it would not be cleared on the due date, coupled with the subsequent partial payments, constituted a prima facie case of cheating under Section 420 IPC. The court relied on the decision in Daulatram's case (1982 0 MPWN 88) to hold that subsequent acts in conjunction with other circumstances may properly be considered in determining whether or not there was guilty mind in the very beginning of the bargain. 2. The court held that at the stage of taking cognizance and issue of process under Section 204 of the CrPC, the material must be such as to enable the Magistrate to form an opinion that there are sufficient grounds for proceeding against the accused. At the subsequent stage of charge, the material must be such as to satisfy a more rigorous test and must raise a positive presumption of guilt. At the conclusion of a trial, the material must stand the most rigorous test of proof beyond reasonable doubt.
Final Decision: The court dismissed the petition, holding that the Magistrate's order issuing process against the petitioner was not liable to be interfered with.
( 1 ) THIS petition under S. 482 of the Criminal Procedure Code, 1973, (for short 'the Code') is directed against the order dated 5-8-1986 passed by the Judicial Magistrate first Class, Barwah in Criminal Case No. 567/86 whereby under S. 204 of the Code, he has ordered issue of process against the petitioner in respect of an offence under S. 420 of the I. P. C.
( 2 ) CIRCUMSTANCES giving rise to the petition are these. The non-applicant No. 1 filed a complaint against the petitioner complaining that he has committed an offence under S. 420 of the I. P. C.
( 3 ) ACCORDING to the non-applicant 1 the petitioner on 28-2-83 purchased, on credit, cotton worth Rs. 90,178. 20 p. It was agreed that the entire price shall be paid within 30 days of the transaction. Subsequently a postdated cheque for Rs. 90,000/- payable by or after 12-4-83 was sent. When the same was presented for encashment it was dishonoured by the bankers as the payment of the cheque had been stopped by the petitioner. Later on 4-6-1983 and 25-7-83 the non-applicant 1 in all received Rs. 40,178. 00 towards the price of the cotton supplied. Rs. 50,000/-, the balance of price still remain unpaid.
( 4 ) THE contention of the petitioner in this Court is that the post-dated cheque was issued in due course of business and it was ever the intention that it should not be cleared by the bankers on the due date. It is urged that the partial payment of price clearly negatives the existence of any dishonest intention. It is further urged that even after the cheque had been dishonoured, the non-applicant 1 has received payment towards the price and the disputed is essentially of civil nature. The complaint, it is urged, deserved the fate of dismissal under S. 203 of the Code.
( 5 ) THE non-applicants have supported the impugned order. Reliance has been placed on the decisions in Shantilal's, 1956 0 Crlj 68 and Daulatram's case 1982 MP WN 88 ).
( 6 ) THE point for consideration is whether the petition deserves to he allowed.
( 7 ) A Magistrate owes a duty to the complainant as well as to the absentee accused. It is his duty to see that criminals are brought to book but it is also his duty to ensure that innocent persons are not harassed with ulterior motive through the process of criminal court. The decision in Vadilal Parichat's, AIR 1960 SC 1113 may usefully he perused. It is true that care has to be taken to ensure that a party does not succeed in using the machinery of criminal law for enforcement of civil rights. However, it has to be remembered that a transaction may give rise to civil as well as criminal liability. In a given case the dividing line between the two liabilities may be very thin but the distinction is real and cannot lie ignored.
( 8 ) EXCEPTIONS apart, actus reus and mens rea (guilty intention) both must concur to constitute a crime. Mens rea precedes the act. Whether the act is coupled with the preexisting mens rea, a crime is properly constituted. Where there is no pre-existing mens rea and there is subsequent inability to perform the promise, only civil liability is incurred. As pointed out in the decision in Shantilal's case (1956 Cri LJ 68) (Madh Bha) (supra) a distinction must be drawn between a case where a post-dated cheque is given to discharge the existing liability and a case where it is issued against delivery of goods, property or cash with an assurance implied or otherwise that it will he met on being presented to the bank on the due date and in due course. In the first case the failure to provide the balance is merely a breach of promise whereas in the latter it may have different consequences. It is the intention of the drawer at the time when the cheque is issued which constitutes the material test and if it appears from the circumstances of the drawer that he did not expect that the cheque would be cashed in normal course, it would be prima facie proof of the intention to cheat as is clear form Illustration (f) to S. 415
