TMI Blog2019 (10) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... urance. In view of the provision contained in Section 420 of the Indian Penal Code, the intention of the offender who induces the complainant is the decisive in discerning whether the offence of cheating was committed or not. In fact, it cannot be denied that many a cheatings are being committed in the course of commercial and also money transactions - In the present case, the allegation in the First Information Report disclosed the offences alleged. Moreover, the allegations made in the F.I.R. disclosed that the petitioners induced the complainant to purchase share or invest money by wilful misrepresentation. It is true that the complaint discloses that there was a commercial transaction between the parties but at the same time, it cannot be overlooked that the averments made in the complaint/F.I.R. prima facie reveal the commission of an cognizable offence. Allegation contained in the F.I.R. involve appreciation of evidence. Moreover, when complaint discloses that the commercial transaction between the parties involves criminal offences, then the question of quashing the complaint cannot be allowed - the continuance of criminal proceedings against the present petitioners/ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir company. They stated to the opposite party no.2 that the retail business of the apparel under the Prinkit brand through a network of exclusive band outlets was witnessing a high growth. The petitioners also stated that they would provide exist route through I.P.O.(Initial Public Offer)(an act of offering the stock of a company on a public stock exchange for the first time) to the opposite party no.2 for their safe investment within three years of their investment and if the I.P.O. does not come by that date then the petitioner company would pay the entire amount along with interest. On 25.03.2008, the opposite party no.2 filed share application form along with a cheque of Rs.2,50,00,000/- for the purchase of Rs.2,50,000/- equity share of the petitioner no.1 company. On 29.03.2008, petitioner no.1 through petitioner no.2 had issued an allotment letter to the opposite party no.2 wherein, confirming the allotment of Rs.2,50,000/- shares in the name of opposite party no.2 and had also undertaken to issue share certificate at the earliest. On 20.08.2009, the petitioner company allotted shares to the opposite party no.2 only after one year of making investment and thereafter re-confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the F.I.R. in connection with Bowbazar Police Station case was lodged during the pendency of the complaint case at Tis Hazari Court. He has also contended that at first police submitted charge-sheet in connection with Bowbazar Police Station case and thereafter the opposite party filed one application under Section 173(8) of the Code of Criminal Procedure for further investigation and said prayer was allowed. After further investigation charge-sheet was submitted against the present petitioners on 13.02.2017. The complaint case was dismissed by the Learned Magistrate Tis Hazari Court on 19.09.2016. In this connection, Learned Counsel has submitted that the opposite party no.2 lodged the F.I.R. with Bowbazar P.S. after suppressing the fact that one complaint in respect of the same facts was pending in the Court of Learned Magistrate, New Delhi. He has also contended that in order to bring an action in Calcutta, the opposite party no.2 has suppressed that fact. The further contention of the Learned Advocate for the petitioner is that the allegations contained in the F.I.R. are purely contractual disputes of civil nature and although breach of contract does not come within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Appeal No.499 of 2011. 5) V. Ravi Kumar Vs. State, Rep. by Inspector of Police, District Crime Branch, Salem, Tamil Nadu Ors. of the Hon ble Supreme Court in Criminal Appeal No.111 of 2011. 6) Sau. Kamal Shivaji Pokarnekar Vs. The State of Maharashtra Ors. of the Hon ble Supreme Court in Criminal Appeal No.255 of 2019. 7) State of Karnataka Vs. M. Devendrappa and Another reported in (2002) 3 Supreme Court Cases 89. 8) Radhey Shyam Khemka and Anr. State of Bihar reported in 1993 CriLJ 2888. 9) Rajiv Modi Vs. Sanjay Jain and Ors. of the Hon ble Supreme Court in Criminal Appeal No.1214 of 2009. Before going into factual details, rival contentions and the legal issues involved in the case at hand, it is useful to refer the relevant provisions of the statute. In the instant case, after completion of investigation charge-sheet was submitted for the commission of the alleged offences punishable under Section 406/420/120B of the Indian Penal Code. Section 415 of the Indian Penal Code defines cheating as under:- 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... induced the complainant to purchase share or invest money by wilful misrepresentation. I have carefully gone through the complaint/F.I.R. It is true that the complaint discloses that there was a commercial transaction between the parties but at the same time, it cannot be overlooked that the averments made in the complaint/F.I.R. prima facie reveal the commission of an cognizable offence. Allegation contained in the F.I.R. involve appreciation of evidence. Moreover, when complaint discloses that the commercial transaction between the parties involves criminal offences, then the question of quashing the complaint cannot be allowed. In order to exercise the power under Section 482 of the Code of Criminal Procedure, the only requirement is to see whether continuance of the criminal proceedings would be a total abuse of the process of Court. In view of above, I am of the view that continuance of criminal proceedings against the present petitioners/accused would not be an abuse of the process of the Court. Hence, the prayer for quashing of the proceedings and setting aside the impugned order are hereby dismissed. Before parting with the case, I would like to clarify that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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