Learned Advocate for the v. The State of Punjab and another in Criminal Appeal No

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD942 CRIMINAL APPLICATION NO.3435 OF 2024Dilip Khiru Rathod,Age 46 yrs., Occ. Agri.,R/o Chincholi, Tq. Umarkhed,Dist. Nanded. … Applicant… Versus …1The State of MaharashtraThrough Police Station,Hadgaon, Dist. Nanded. 2Namdev Suresh Kadam,Age 22 yrs., Occ. Agri.,R/o Yelamb, Tq. Hadgaon,Dist. Nanded. … Respondents...Mr. Abhishek Patil Bankar, Advocate for applicantMrs. Priya R. Bharaswadkar, APP for respondent No.1...CORAM :SMT. VIBHA KANKANWADI &SHAILESH P. BRAHME, JJ.DATE:16th AUGUST, 2024ORDER :(PER : SMT. VIBHA KANKANWADI, J.)1Present application has been filed for quashing the FirstInformation Report vide Crime No.128/2024 registered with Hadgaon Police 2942_Cri.Appln_3435_2024Station, Dist. Nanded on 11.05.2024, for the offence punishable underSections 406, 420, 504, 506 of the Indian Penal Code, 1860, at the behest ofrespondent No.2. 2Heard learned Advocate Mr. Abhishek Patil Bankar for applicantand learned APP Mrs. Priya R. Bharaswadkar for respondent No.1. It is noteven necessary to issue notice to respondent No.2. 3It has been vehemently tried to be submitted on behalf ofapplicant that informant in his First Information Report alleges that he is afarmer, who supplies sugarcane to Dekkan Sugar Private Limited and in theyear 2023 he was in requirement of labours for cutting of sugarcane crop.For that purpose he has given amount of Rs.10,00,000/- in cash to theapplicant on 17.01.2023 and entered into contract, however, during theentire season of 2022-2023 the applicant had not supplied him labours andthereby, according to the informant, he has been cheated. If we considerthese contents of First Information Report, then it can be seen that it is basedon the written document and the informant has tried to convert a civiltransaction into criminal. If at all the informant intends to say that there isbreach of terms of contract, then he should file appropriate proceedingsunder Civil Law. Mere breach of terms of contract cannot be termed as 3942_Cri.Appln_3435_2024cheating. If we consider the document of contract, then it states that amountof Rs.2,00,000/- was given in cash on 25.05.2022, amount of Rs.3,00,000/-was given in cash on 01.06.2022 and it was decided that amount ofRs.5,00,000/- would be given to the applicant on 01.08.2022. But in theFirst Information Report the informant states that he had given the amount ofRs.10,00,000/- in one go. Further, the delay in lodging First InformationReport is not explained at all by the informant. It would be, therefore, afutile exercise if the applicant is asked to face the trial. 4Learned Advocate for the applicant relies on the decision inSarabjit Kaur vs. The State of Punjab and another in Criminal Appeal No.581of 2023 decided on 01.03.2023, wherein it has been held by Hon’bleSupreme Court that – “A breach of contract does not give rise to criminal prosecution forcheating unless fraudulent or dishonest intention is shown right at thebeginning of the transaction. Merely on the allegation of failure tokeep up promise will not be enough to initiate criminal proceedings.”4.1He further relies on the decision in Naresh Kumar and anothervs. The State of Karnataka and another in Criminal Appeal (arising out of SLP(CRL.) No.1570 of 2021) decided on 12.03.2024, wherein it has beenobserved by Hon’ble Supreme Court that - 4942_Cri.Appln_3435_2024“A complaint disclosing civil transactions may also have a criminaltexture. But the High Court must see whether a dispute which isessentially of a civil nature is given a cloak of criminal offence. Insuch a situation, if a civil remedy is available and is, in fact, adoptedas has happened in this case, the High Court should not hesitate toquash the criminal proceedings to prevent abuse of process of thecourt.”In this case, the decision in Paramjeet Batra vs. State ofUttarakhand [(2013) 11 SCC 673], Randheer Singh vs. State of UttarPradesh [(2021) 14 SCC 626], Usha Chakraborty and another vs. State ofWest Bengal and another [2023 SCC OnLine SC 90], Vesa Holdings (P) Ltd.vs. State of Kerala [(2015) 8 SCC 293] were referred. 4.2Further, he relies on the decision in Binod Kumar and others vs.State of Bihar and another [AIR 2015 SC (CRI) 18] on the same line.5The first and the foremost observation we would like to make isthat the First Information Report has been lodged on 11.05.2024 andinvestigation is still incomplete. Applicant cannot have a knowledge as towhat evidence has been collected by the Investigating Officer. Only on thebasis of contents of First Information Report he wants that this Court shouldexercise its inherent powers under Section 482 of the Code of CriminalProcedure. In fact, such powers are required to be exercised in rare cases. 5942_Cri.Appln_3435_2024Certainly, when a transaction is entered into, then it may give sometimes acivil remedy and also a criminal remedy as has been observed in NareshKumar (supra). A complaint disclosing civil transaction may also have acriminal texture, therefore, it was bounden duty of the applicant to show thatthere is no criminal texture involved in the present matter. In the FirstInformation Report it has been stated by the informant that he is the ownerof tractor and his uncle is also owner of tractor. Both had entered intoagreement with Dekkan Sugarcane Private Limited i.e. the sugar factory bytaking advance of Rs.9,00,000/- from the factory from the year 2022-2023for transportation of sugar from various fields growing sugarcane crop to thefactory. It appears that they have given amount of Rs.10,00,000/- to thepresent applicant, who was taking contract for supply of sugarcane cuttinglabours. It is stated that, that amount was given on 17.01.2023 and then anagreement was entered into for supply of sugarcane cutting labours by theapplicant to the informant. But in spite of the season commenced theapplicant had not supplied such labours and whenever the informant hadtried to contact applicant, he had switched off his cell phone. The informantthen realized that he has been cheated and, therefore, when he tried tocontact the applicant for return of the amount which he had given, it was notreturned and avoided on one or the other pretext. Ultimately in March, 2023when he himself, his father and one more person went to the house of the 6942_Cri.Appln_3435_2024applicant, at that time the applicant was not available. Thereafter, when hemet the informant, informant demanded amount of Rs.10,00,000/- from him.At that time, the applicant had given him threat to kill. We have intentionallyrepeated the story because it was not properly given in the application. Uponperusal of above said contents, which we have now given, a possibility cannotbe ruled out that applicant had the intention to chit since beginning.Whether it simply amounts to breach of contract or the intention was sincebeginning not to perform the contract, which may amount to cheating is nowa part to be investigated, for which we may not only rely upon the FirstInformation Report. The First Information Report is not an encyclopedia.Certain things to be got clarified for which supplementary statements wouldbe recorded. The delay can be explained. Delay in lodging the FirstInformation Report cannot be the sole ground for quashing First InformationReport, unless the said delay was inordinate and goes to the root of the case.Here, it appears that at one point of time the informant accepted that theperformance of the contract is not possible and, therefore, he will not insistupon the performance. Therefore, he demanded the amount back. Nodoubt, recovery of amount with damages or compensation can be a remedy,but at the same time, if it is demonstrated that since beginning there was nointention on the part of applicant to perform his part of the contract; yet, heentered into, then cheating since inception would give rise to an offence. 7942_Cri.Appln_3435_20246The ratio laid down in all above authorities is definitely bindingon this Court, however, as aforesaid, the facts differed. All the points that itis yet to be completely revealed as to whether the applicant had no intentionto perform the part of the contract, thereby the said act amounts to cheating.7As observed above and from the experience we are observingthat on many occasions it appears that clients are hurriedly come forquashment of First Information Report. No breathing time is also given toFirst Information Report for its investigation. The quashment cannot be atthe whims of the accused. It would be the duty of the Advocates representingsuch persons that they should advise their clients that they should wait forthe evidence to be collected and then taking into consideration the evidencecollected would go for the quashment of First Information Report and theproceedings. Unnecessary hurry in a matter is proving to be fataled. At thisstage, we do not find this case to be a case where we should exercise ourinherent powers under Section 482 of the Code of Criminal Procedure forquashing First Information Report. Application stands rejected at thethreshold. (SHAILESH P. BRAHME, J.)( SMT. VIBHA KANKANWADI, J. )agd