Mere breach of promise does not necessarily constitute cheating, and there must be fraudulent or dishonest intention at the time of making the promise to constitute an act of cheating.

ORDER :

1. This petition under section 482 of the Code of Criminal Procedure (for short “the Code”) has been filed for quashing FIR No. 168 dated 17-11-2011, final Report No. 15/12 and proceeding in Criminal Case No. 310/2012 pending before the Judicial Magistrate First Class, Dhar.

2. Brief facts of this case are that on 19-3-2010 applicant proprietor of the firm M/s Lorven Rock Breakers and non-applicant No. 2 entered into a purchase agreement for supply of crushed aggregates of all sizes for 24 months for construction of four laning Indore to Madhya Pradesh - Gujrat border. On 1-11-2011, non-applicant No. 2 filed a complaint against the applicant stating that as per agreement till September, 2010 applicant has supplied the material, thereafter the applicant has supplied the crushed aggregates less than required quantity, however, applicant informed and assured non-applicant that in future he will make available the material in time. But he has failed to supply the material. Thus he made a false assurance that he will supply the material in time. Non-applicant for supplying the material gave advance money Rs. 2,90,00,000/- (Rupees Two Crores Ninety Lakhs). The applicant has not supplied the material and returned the money. Hence, he has cheated the non-applicant. Learned Magistrate has sent the complaint under section 156(3) of Code to Police Station Tirla, District Dhar, with a direction to register the offence and file final report, hence Crime No. 168/11 under section 420 of Indian Penal Code was registered against the applicant at Police Station Tirla. After investigation final report has been filed against the applicant for offence under section 420 of Indian Penal Code. Being aggrieved applicant filed this petition for quashment of FIR so also further proceedings pending before the Judicial Magistrate First Class, Dhar on the following grounds:-

(i) There is a business transaction and there is no allegation in the complaint that at the very inception of the contract between the parties there was any intention to cheat the non-applicant.

(ii) The complaint pertains to a civil case of breach of contract and not a criminal case of cheating.

3. The non-applicant No. 2/complainant resisted the petition on the ground that the case is fixed before the trial court for charge, hence, the petition is not maintainable.

4. After hearing learned counsel for the parties, perused the record.

5. It is clear from the allegations made in the complaint and the police statements that the applicant entered into an agreement with non-applicant No. 2 for supply of crushed aggregates of all sizes for 24 months. Till September, 2010 applicant has supplied the material as per agreement, however, thereafter he has supplied the material in less quantity than the required quantity. The applicant has assured that in future he will supply the material as per requirement, however, after repeated correspondence the applicant has failed to supply the material in required quantity and has not returned the advance amount Rs. 2,90,00,000/- to the non-applicant.

6. There is no allegation in the complaint that at the time of arriving at such agreement applicant induced non-applicant No. 2 to enter into an agreement with a view to cheat him. It is not a case that there was no supply of material as it is averted that after the agreement the applicant has supplied the material as per requirement till September, 2010 and thereafter he supplied the material less than the required quantity. The allegations made against the applicant that he assured that he will supply the material in required quantity, however, he failed to do so. This is a case of breach of promise and not cheating. Hon’ble Apex Court in the case of S.N. Palanitkar vs. State of Bihar, 2001 Cr. L.J. 4765 (SC) held that:-

“In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudul