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2015 (3) TMI 1385 - SUPREME COURTCheating - It is alleged in the complaint that the loan transaction of the company with IIBI was settled with the efforts of the complainant/Respondent No. 3 herein but the company, Directors and Promoter did not pay him the consultancy fee as promised and they conspired together to deceive the complainant and committed offences as alleged - breach of contract - HELD THAT:- It is not in dispute that the IIBI did not issue any acceptance letter on or before 30.10.2008 with regard to the settlement of disputes of the Appellant company. The 3rd Respondent also did not present the cheque dated 6.8.2008 issued by the Appellant company for encashing a sum of ₹ 30 lakhs. Due to the efforts of the Appellant company IIBI finally agreed and issued letter of acceptance dated 5.1.2009. One year later, the 3rd Respondent sent a letter dated 6.3.2010 to the Appellant company demanding the balance amount of ₹ 70 lakhs towards the consultancy fee. No allegation whatsoever was made against the Appellants herein in the said letter. It was only mentioned in it that the consultation fee remains unpaid and the company is delaying the payment on one pretext or the other. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not - In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence Under Section 420 Indian Penal Code. The complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the court. Appeal allowed - decided in favor of appellant.
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