TMI Blog2007 (10) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale deed, the appellant herein did not make any false or misleading representation. There had also not been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Basic fact of the matter is not in dispute. 4. First respondent herein filed a complaint petition. The parties hereto entered into an agreement for sale in respect of a house admeasuring 350 square yards for a consideration of ₹ 23,80,000/-. A sum of ₹ 5,00,000/- was paid by way of advance. A sale deed was executed on 30.9.2005 by the appellant herein on receipt of the balance sum of ₹ 18,79,000/-. 5. Indisputably on or about 29.9.2005, two rooms, allegedly, constructed on the said lands were demolished. A suit was filed in relation thereto. Respondent No.1 was also defendant in the said suit. In the written statement, she stated : Whereas it is the Plaintiffs who by demolishing existing structure when the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 415 Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat . Explanation, A dishonest concealment of facts is a deception within the meaning of this section. Section 415 of the Indian Penal Code is required to be read with the definition of the expression dishonestly as contained in Section 24 thereof in terms whereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 12. While executing the sale deed, the appellant herein did not make any false or misleading representation. There had also not been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute. 13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. Therein, having regard to the fact that a criminal complaint under Section 138 of the Negotiable Instruments Act had already been pending, the criminal complaint under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capaciti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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