Revisionists v. Sunil Kumar & Anr.

persons and dismissal of the first complainant on 12.12.1989, the second complaint could not have been instituted against the same accused persons for the same offence and on the basis of same set of facts. This contention is not tenable and cannot be accepted for the reason that in the present case, the cognizance was taken by the learned Magistrate for the offence of Section 420 IPC, which is in the nature of warrant-trial, and being so, it was the duty of the Magistrate to summon the witnesses including the complainant for adducing evidence under Section 244 CrPC, exercising his powers and ensuring the attendance of the complainant and his witnesses even using coercive measures. It was wholly illegal to dismiss the complaint only for the reason of the absence of the complainant. The dismissal of first complaint, as has been done by the learned Magistrate on 12.12.1989, besides being illegal, has, at the most, the effect of discharge of the accused persons. They cannot be deemed to have been acquitted by effect of this order because no trial was ever conducted. This analogy is also in consonance with the explanation appended to Section 300 CrPC. So, the institution of the second complaint, in such an eventuality, is not barred by any provision of the Code of Criminal Procedure.

8. The other argument put forth by the learned Counsel is that contents of the complaint did not disclose the offence of Section 420 IPC. In support of his argument, learned Counsel has relied upon two precedents. In the first precedent of Allahabad High Court, delivered on 9.1.1978 in 4 Criminal Miscellaneous No. 173 of 1977, M/s Prestolite of India Ltd. & Another v. The Munsif Magistrate, Hawali & Another, the learned Single Judge of the Allahabad High Court has opined that giving of a cheque is nothing but to promise to pay. If the promise is not fulfilled, the right of the aggrieving party is to sue and to seek civil remedy. It does not give rise to any criminal action. Subsequent refusal to pay the price of the goods, already delivered, also does not, per se, give rise to a criminal action.

9. In another precedent delivered by the Hon(cid:146)ble Apex Court in case of S.W. Palanitkar & Others v. State of Bihar & Another, reported in (2002) 1 SCC 241, it has been 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 fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.

10. Having regard to both the precedents (supra) and particularly the view expressed by the learned Single Judge of the Allahabad High Court, in the humble opinion of this Court, the facts involved in instant controversy are different and the same have little more gravity than a bare promise to pay in consideration of the supply of some goods. The conduct of the accused revisionists, their intent and the inducement extended by them to the complainant at Dehradun appear to be something more than a sheer promise to pay in the usual transaction of the business.

11. So, in the peculiar facts and circumstances of this case and legal provisions, discussed above, this Court is not 5 inclined to interfere with the impugned order. This revision is bereft of any merit and is liable to be dismissed.

12. The revision is, accordingly, dismissed. Interim order dated 16.6.2004, passed by this Court, is hereby vacated.

13. Inform the court concerned accordingly.

3.1.2012 Prabodh (Servesh Kumar Gupta, J.)