Pratibha Rani v. Suraj Kumar & Anr. (1985) 2 SCC 370; Rajesh Bajaj v. State & Ors.

Judgment

[2008] 17 S.C.R. 588 A B V.Y. JOSE & ANR. \I. STATE OF GUJARAT & ANR. (Criminal Appeal No. 2048 of 2008) DECEMBER 16, 2008 [S.B. SINHA AND CYRIAC JOSEPH, JJ.] Code of Criminal Procedure, 1973: s.482 - Scope of - Complaint under s.420 !PC - c Quashing of - Held: Absence of averments in complaint petition wherefrom ingredients of offence of cheating could be made - Hence, case not made out for criminal trial - High Court erred in not quashing the complaint/proceedings - Penal Code, 1860 - s.420. D Penal Code, 1860: s.420 - Cheating - Essential ingredients of. s.420 - Offence of cheating vis-a-vis breach of contract- E Distinction between. Criminal Law: Criminal proceedings - If barred only on the ground that civil law could be taken recourse to.

Respondent no.2-complainant firm placed an order to manufacture a machine on the firm in which appellant F 1 was the partner and appellant 2 was the employee. Complainant firm paid advance of Rs.3 lacs. A partner of complainant-firm found that the machine manufactured did not conform to the specifications in the order placed and refused to take delivery thereof. The complainant called upon the Firm to pay the advance amount along with interest. In reply, the complainant firm was asked to take delivery of the machine. Thereafter complaint was filed. The CMM took cognizance of the offences against the appellants under ss.417, 420 r.w. s.114 IPC. Appellants G H' 588 e > 0 - - r- ~ ; n- ~.' .Jim j f ...

V.Y. JOSE & ANR. v. STATE OF GUJARAT & ANR. · 589 filed application before High Court for quashing of A proceedings which was dismissed. In appeal to this Court, the appellants contended that the allegations made in the complaint petition even if given face value and taken to be correct in its entirety did not disclose an offence under s.420 IPC; a breach of B contract simpliciter did not constitute an offence under s.420 IPC; and that there was no averment in the complaint petition to the effect that the appellant had an intention to cheat at the time of entering into the contract. Allowing the appeal, the Court C HELD: 1. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation.

Even in a case where allegations are made in regard to failure on the part o of the accused to keep his promise, in absence of a culpable intention at the time of making i'nitial promise being absent, no offence under s.420 IPC can be said to have been made out. The facts disclosing the ingredients of the offence must be averred in the complaint petition. There cannot, furthermore, be any doubt that only because civil law can be taken recourse to would not necessarily mean that criminal,,proceedings should be oarred. [Paras 12 and 13] [596-8-C, D-E] E