Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2020 (10) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (10) TMI 1291 - HC - Indian LawsSeeking grant of anticipatory bail - civil proceedings given in a criminal colour or not - collection/recovery agent for commercial transaction between the parties - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- A mere breach of a promise, agreement or contract does not, ipso facto, constitute a criminal breach of trust, without there being a clear case of entrustment. Further, the transaction had taken place in the year 2008 and the complaint was lodged in the year 2015. For constituting an offence of cheating, the complainant is required to show that the petitioner had fraudulent or dishonest intention at the time of making promise or representation. In this case, no such promise or representation was made by the petitioner. The transaction between the petitioner and the 2nd respondent is a contract, mere failure of agreement and contract would not lead to offence of cheating and misappropriation. The 2nd respondent to recover the amount and its dues, instituted civil proceedings, seeking recovery of loan amount, which is still pending for adjudication. It is observed in this case that it is difficult to establish conspiracy by direct evidence or to infer in the absence of any such averments. This Court finds that the dispute between the parties constitute only a civil wrong and not a criminal wrong. The Hon'ble Apex Court in the case of Inder Mohan Goswami Versus State of Uttaranchal [2007 (10) TMI 550 - SUPREME COURT], elaborately dealt on this aspect, questioned dual the proceedings and observed that the criminal prosecution are not to be used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused when dispute between the parties constitute only a civil wrong and not a criminal wrong and also observed that allowing the proceedings to continue would be an abuse of process of Court or that the ends of justice require that the proceedings ought to be quashed. It is clear that a civil dispute has been given in a criminal colour. At the most, it can only be said that the inability of the petitioner to return the loan amount cannot give rise to criminal prosecution. The respondent by himself and his family members, instituted a civil proceedings for seeking recovery of loan amount - Petition allowed - decided in favor of appellant.
|