TMI Blog2018 (10) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... nant has already filed a civil suit against the applicants before a Court of competent jurisdiction, which is pending. The criminal complaint filed by the complainant against the applicants is hereby quashed and the applicants are discharged. Application allowed. - M.Cr.C. No.2636/2016 - - - Dated:- 14-8-2018 - G.S. Ahluwalia J. For the Applicants : Shri A.M. Mathur, Senior Advocate with Shri Abhinav Dhanodkar, Counsel For the Respondent : Shri Samarjeet Singh Chouhan, Counsel ORDER Heard finally. This application under Section 482 of Cr.P.C. has been filed for quashment of the order dated 21-1-2016 passed by 19th A.S.J., Indore in Criminal Revision No.690/2015, thereby affirming the order dated 24-8-2015 passed by J.M.F.C., Indore in Criminal Case No.19585/2012, by which charge under Section 420 of I.P.C. has been framed. It is submitted by the Counsel for the parties that the Trial is still at the initial stage. The necessary facts for the disposal of the present application in short are that the respondent Devendra Parmar, filed a criminal complaint against the applicants for offence under Sections 420, 405 and 406 of I.P.C. on the allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submitted that the allegations made by the complainant are of civil in nature and the complainant himself has filed a civil suit which is pending, therefore, the dispute which is of civil in nature, cannot be allowed to be converted into a criminal case and thus, the order framing charge is liable to be set aside and the applicants are liable to be discharged. Per contra , it is submitted by the Counsel for the respondent that the applicants knew the fact that there is no sufficient amount in the bank account, but still with an intention to cheat the complainant, the cheque in question was issued, and further by making false promise of making the payment, they kept the complainant in dark, as a result of which, the statutory period for filing the complaint under Section 138 of Negotiable Instruments Act, also expired. Heard the learned Counsel for the parties. In order to make out a prima facie case for prosecuting a person, the complainant must show that the accused had dishonest intention of cheating the complainant, right from very inception. The Supreme Court in the case of State of Kerala Vs. A.P. Pillai reported in AIR 1973 SC 326 has held as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts had dishonest intention at the time, when the cheque was issued as they knew this fact that the bank account has no sufficient funds and later on the bank account was closed. Thus, the basic allegation of dishonest intention on the part of the applicants at the time of oral agreement for taking liaisoning services of the complainant are missing in the complaint. Further, it has been admitted by the parties that a civil suit has already been filed by the complainant against the applicants for recovery of the fees, which is still pending. The moot question for determination is that even if the entire allegations are accepted, then whether the dispute would be predominantly of civil in nature or it also involves the ingredients of criminal intent. It is well established principle of law that where the dispute is predominantly of civil in nature, then the same cannot be given the colour of criminal case. Similarly, where the criminal intents are involved, then the prosecution cannot be quashed only on the ground that the allegations also involve civil dispute. The Supreme Court in the case of Binod Kumar Ors. v. State of Bihar Anr. reported in (2014) 10 SCC 663 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been stated and reiterated by this Court in several decisions. To mention a few-Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692, State of Haryana v. Bhajan Lal,1992 Supp (1) SCC 335; Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194, Central Bureau of Investigation v. Duncans Agro Industries Ltd (1996) 5 SCC 591; State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164, Rajesh Bajaj v. State NCT of Delhi,(1999) 3 SCC 259; Medchl Chemicals Pharma (P) Ltd. v. Biological E. Ltd(2000) 3 SCC 269 [pic]Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168, M. Krishnan v. Vijay Singh (2001) 8 SCC 645 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque( 2005) 1 SCC 122. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 this Court observed: (SCC p. 643, para 8) 8. It is to be seen if a 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. 14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. 16. The distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question. 23. In Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736, this court observed that civil liability cannot be converted into criminal liability and held as under:- 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. (2000) 2 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re fee and had issued a cheque knowingfully well that there is no sufficient fund in the bank account and later on, the said bank account was closed. The applicants were making false promise to make payment of the cheque amount, so that the limitation for filing the complaint under Section 138 of Negotiable Instruments Act, may expire. So far as the question of non-payment of fees for the services rendered by the complainant is concerned, it is clear that there is no allegation to the effect that the applicants had dishonest intention right from the very beginning. Thus, mere failure on the part of the applicants to pay the remaining liaisoning fee to the complainant, would certainly give rise to a civil dispute, but would not be an offence under Section 420 of I.P.C. It is well established principle of law that a dispute, which is predominantly of a civil in nature, cannot be allowed to be converted into a criminal case, so that a shortcut method for recovery of money can be adopted. Thus, considering the allegations made against the applicants, this Court is of the considered opinion, that the complaint filed by the complainant, lacks the basic allegation of dishonest inten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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