TMI Blog2007 (8) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Indian Penal Code can be said to have been made out in the instant case. Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made. Ordinarily, bouncing of a cheque constitutes an offence u/s 138 of the Negotiable Instruments Act. No complaint thereunder had been taken. No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception. In law, only because he had issued cheques which were dishonoured, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article. He issued two cheques for a sum of ₹ 3,559/- and ₹ 3,776/- in the year 1983. The said cheques were dishonoured. Alleging that by reason of such act, the appellant has committed offences under Sections 406, 409, 402 and 417 of the Indian Penal Code, a complaint petition was filed by the First Respondent in the Court of Special Judicial Magistrate, Rampur which was marked CC No. 132 of 1986. The principal allegation made therein against the appellant reads as under: That applicant, regarding these cheques and payment of money, wrote several times to accused and also sent his representative. But he kept on making excuses in making payment. At last he told on 19.12.1985 that he had issued fabricated cheques knowingly wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has purchased articles worth ₹ 3599.33 P and ₹ 3776.73 P. in 1983 for which payment was made through Bank. Both cheques issued by the accused were dishonored. On when reminder for payment is made to the accused then he said that I have knowingly issued the fabricated cheques to cheat him and grab his money. I will not pay. 6. Cognizance was taken against the appellant. He was summoned. An application was filed by him on 25.08.1987 for quashing of the said criminal proceeding before the High Court. A learned Single Judge of the Allahabad High Court by reason of the impugned order dated 3.01.2006 while refusing to exercise his jurisdiction stated: As the allegations against the applicant are factual in nature, that cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made. Ordinarily, bouncing of a cheque constitutes an offence under Section 138 of the Negotiable Instruments Act. No complaint thereunder had been taken. 9. We are, therefore, left only with the question as to whether in a situation of this nature any offence of cheating can be said to have been made out. Section 415 of the Indian Penal Code defines cheating to mean: 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed. Therefore it is the intention which is the gist of the offence. 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. [See also Indian Oil Corporation v. NEPC India Ltd. and Ors. AIR2006SC2780 ] The ingredients of Section 420 of the Indian Penal Code are as follows: i) Deception of any persons; ii) Fraudulently or dishonestly inducing any person to deliver any property; or iii) to consent that any person shall retain any property and finally intentionally inducing that per ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
