TMI Blog2014 (2) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner was in need of Rs. 8 lakhs and he requested the complainant to give him a loan for the said amount. Because of the friendship and bona fide need, the complainant advanced the loan to the petitioner on the understanding that loan will be repaid on or before 12.3.2010 and in token of the assurance and promise, the petitioner also issued one cheque for Rs. 8 lakhs. The complainant had deposited the cheque after 12.3.2010 and the same came to be dishonoured for insufficiency of fund - It appears that the petitioner did not harbour any apprehension that the complainant will not pay the amount and that also perhaps explains why he had not initiated proceeding under Negotiable Instruments Act, 1881 and why he had agreed for re-payment of the loan amount on instalment of Rs. 50,000/- per month. As such, no averment or allegation in the complaint was made that there was any fraudulent or dishonest intention on the part of the petitioner at the time of taking of the loan. From the averments made in the complaint petition and the initial deposition of the complainant, where the complainant only says that accused did not repay the loan as per promise made despite his many requests a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the dispute is purely a civil dispute and the same cannot be converted to a criminal offence. 3. It is also submitted by him that the mere fact that the cheque issued by the petitioner at the time of taking loan for an amount of Rs. 8 lakhs was not honoured when presented due to insufficiency of fund, does not satisfy, in the facts and circumstances of the case, the ingredients of Section 420 IPC. After the cheque was dishonoured, the complainant requested the petitioner to refund the amount of Rs. 8 lakhs on monthly instalment of Rs. 50,000/- per month till the amount of loan was liquidated and to that effect an agreement was also entered into on 28.4.2010 and in terms of the said agreement, the petitioner had also paid a sum of Rs. 50,000/- on that very day. It is submitted by him that refusal and/or failure to refund the amount does not make it an offence of cheating in absence of any dishonest or fraudulent intention at the very inception. In support of his submission, learned senior counsel has also drawn the attention of the court to the initial deposition of the complainant which was made available at the time of hearing of this case to contend that the said depositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill also be appropriate to reproduce Section 420 IPC for ready reference in order to appreciate the contention of the learned counsel for the parties. The section reads thus: 420. Cheating and dishonestly inducing delivery of property- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 9. Before proceeding further, it will be apposite to consider the cases cited by the learned senior counsel for the petitioner. 10. The facts in Hari Prasad (supra) are to the effect that the complainant had filed a complaint against two accused persons, who were respondents in the proceeding before the Apex Court, stating that the complainant was running a business at Samastipur in Bihar and at Calcutta and the respondents were known to him and he had full faith on them. In order to start some business, he had talked to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bles. Broadcasting of GOD TV commenced in certain zones of Ahmedabad. It was stated in the complaint that three cable operators including Mr. Lalabhai had agreed to broadcast GOD TV after the Company had agreed to pay a sum of Rs. 10 lakhs to Mr. Lalabhai. Apparently, the amount was not paid to Mr. Lalabhai and the cable operators, who had started telecasting GOD TV , were pressurising the complainant to pay the amount. Some communications ensued between the complainant and the company and subsequently, the company, through a letter dated 18.7.2006, denied all accusations and liabilities. On the aforesaid allegation, an FIR was lodged against the company. The challenge made before the High Court under Section 482 of the Code was negated and the petition was dismissed. On the background of the aforesaid facts, the Apex Court held that the dispute was civil in nature which was given the colour of a criminal offence. Apex Court also opined that on the basis of facts disclosed in the complaint, there was no cheating or a dishonest inducement for the delivery of the property or breach of trust by the appellant and accordingly, quashed the FIR. 12. In Manoranjan Halder (supra), t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instalment basis till the entire loan money was liquidated and to that effect an agreement dated 28.4.2010 was also executed. A sum of Rs. 50,000/- was also paid by the petitioner on the date of execution of the said agreement. The averments made in the complaint gives a clear picture that the complainant was aware of the financial predicament of the petitioner and to help his friend in need, he had advanced the loan of Rs. 8 lakhs. Even after the cheque was dishonoured, he wanted to give some more breathing time to the petitioner by agreeing to accept Rs. 50,000/- per month towards re-payment of the loan. It appears that the petitioner did not harbour any apprehension that the complainant will not pay the amount and that also perhaps explains why he had not initiated proceeding under Negotiable Instruments Act, 1881 and why he had agreed for re-payment of the loan amount on instalment of Rs. 50,000/- per month. As such, no averment or allegation in the complaint was made that there was any fraudulent or dishonest intention on the part of the petitioner at the time of taking of the loan. 15. The complaint petition further alleges that the petitioner refused to pay the balance a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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