TMI Blog2014 (9) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... case that the defacto complainant was induced to part with money by any false representation made by the petitioners. The very conduct on the part of the first petitioner in repaying the amount and executing sale deed in respect of his property towards partial discharge of the amount, as per the allegations raised in the complaint, would go to show that there is no criminal intention for committing any act of cheating from the inception. The petitioners have also admittedly issued cheque for ₹ 25 lakhs on 16.10.2012 towards partial discharge of their liability. The allegation raised herein that the defacto complainant did not present the cheque for encashment as requested by the accused till the expiry of the cheque period, without being obtained fresh cheque leaf, appears to be, in the light of the earlier conduct of the parties, invented for the purpose of this case and is lacking in bonafide. Considering the nature of the transactions between the parties and subsequent conduct of the parties, this Court is of the firm view that the allegations raised in the FIR would disclose that the dispute between the parties is more of civil in nature and there is no fraudulent or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Penal Code and the present complaint is filed only to squeeze the money out of them and that, the previous transaction between the complainant and the first petitioner would show the nature of the entire transaction as civil in nature and the allegations attracting the offence under Section 506(ii) IPC involving the married daughters and unmarried daughter, whose marriage was to take place during the relevant point of time, are raised only to give criminal colour to the civil dispute. 4. Whereas, the relief sought for herein is seriously opposed by the first respondent as well as by the second respondent defacto complainant. 5. Heard the rival submissions made on both sides and perused the records. 6. Though the complaint proceeds as if the first petitioner along with the petitioners 2 to 4 borrowed huge amount from the second respondent defacto complainant for business purpose and partially discharged their liability and failed to repay the balance amount and made life threat to return the documents obtained at the time of borrowing the money without actually repaying the amount, the petitioners have come forward with different theory as if the petitioners are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion letters by either A1 or A2 to A4 etc, the documents produced herein would reveal that there was money transaction between the second respondent and the first petitioner and the first petitioner has made cash payment and executed sale deed in respect of his property towards partial discharge of the same. 8. As far as the allegations raised in the present complaint is concerned, the first part of the same relates to the offences under sections 420 and 406 IPC and the later part relates to the offence under section 506(ii) IPC. As far as the allegations raised attracting the offences under sections 420 and 406 IPC are concerned, the same do not in my considered view, make out any case of cheating and criminal breach of trust. The allegations raised in the complaint in its entirety do only reveal money transaction and partial discharge of the same and the failure to discharge entire liability. As it is only the case of borrowal, agreeing to repay the same with interest and having repaid the part of the amount and on failure to repay the balance amount, no case of cheating and criminal breach of trust arises herein. It is nobody's case that the defacto complainant was induced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach of contract and the offence of cheating and it depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct and mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time, when the offence is said to have been committed and therefore, it is the intention, which is the gist of the offence and to hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning that is, when he made the promise cannot be presumed. 11. Such observation of the Hon'ble Supreme Court is squarely applicable to the facts of the present case, wherein, there is nothing to show that the petitioners have had any fraudulent or dishonest intention at the inception and with such intention induced the defacto complainant to part with money. On other hand, the conduct of the petitioners would show that the first petitioner has genuinely repaid the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the petitioners herein to attract the offence under section 506(ii) IPC. Such case put forth on the side of the complainant involving married daughters and unmarried daughter whose marriage was fixed to be held in December 2013, also appears to be improbable in nature. In this context, it is noteworthy to rely on the observation of the Hon'ble Apex Court in the decision reported in (2007) 12 SCC 1 (Inder Mohan Goswami and another v. State of Uttaranchal and others), wherein, the Apex Court in para 46 held that the court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused . Here is the case wherein the facts discussed above would undoubtedly go to show the malafide intention with which the present complaint came to be filed by the second respondent. In that event, there is no justification for this Court to allow the criminal proceedings to continue and to subject the petitioners to face the ordeal of trial. Hence, in order to prevent the abuse of process of law and to secure the ends of justice, it is but necessary to quash the FIR in Cr.No.1045 of 2013 on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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