Through this petition which has been filed by the applicant under Section 482 Cr.P.C., he has prayed that the order dated 22.8.2009 passed by learned Additional Chief Judicial Magistrate (1), Court No. 2, Allahabad in Criminal Case No. 3305/09 ( Prem Chandra Vs. Sumit Bhalotia) be quashed and set aside.
Brief facts of this case are that opposite party no. 2, Premchandra Dubey, a resident of Allahabad City filed a complaint case under Sections 420/406 I.P.C. in the court of learned Magistrate concerned on 8.7.2009. According to this complaint, opposite party no. 2 is a building painter and is doing the work of painting in Mumbai. He has got an office there in the name of Shivam Construction. Keeping in view his business prospects and derivable income he decided to leave Bombay and start his business of building painting in the city of Allahabad. Therefore, he came back to Allahabad and left his business at Mumbai to be managed by his brother Manik Chandra. The applicant is a resident of Mumbai. As per allegations of the complaint, the applicant had renovated his residential building at Mumbai and made certain additional constructions in it. He wanted his renovated building to be painted and for the purpose he went to the office of O.P. no. 2 at Mumbai where he met the brother of the complainant and informed him regarding his requirements. The brother of opposite party no. 2 told the applicant that he (the applicant) should contact his brother who at that time was at Allahabad. It has been alleged in the complaint that the applicant made a telephonic call to respondent no. 2. Since it was a big contract, the opposite party no. 2 told the applicant that he will come to Mumbai and after inspecting the building he will quote the rates and the probable expenditure. The opposite party no. 2 had informed the applicant regarding the rate etc. and the labour charges. Thereafter the opposite party no. 2 went to Mumbai and contacted the applicant on 8.9.2007 and handed him over the quotations which were accepted by the applicant. The entire painting work was completed by opposite party no. 2 in the month of April, 2008. Thereafter he submitted a bill to the applicant which was about Rs. 15,56,320/-. The advances already made were to be adjusted in this amount. Thereafter the opposite party no. 2 came back to Allahabad with the belief that the applicant will pay the dues within a reasonable time. When the payment was delayed, the opposite party no. 2 went to Mumbai and requested the applicant for payment but no payment was made. Thereafter, the opposite party no. 2 came back to Allahabad and sent a legal notice to the applicant through his counsel for payment of dues. In para 18 of his complaint under Section 200 Cr.P.C., the opposite party no. 2 has said that the applicant has cheated him, committed a breach of contract and and also committed the offence of breach of trust. The learned Magistrate examined the complainant/opposite party no. 2 under Section 200 Cr.P.C. and also examined the witnesses produced by the complainant/opposite party no. 2 before him under Section 202 Cr.P.C. Thereafter through the impugned order, the learned Magistrate summoned the applicant under Section 420/406 I.P.C. Feeling aggrieved by this order and the proceedings pending before his Court, the applicant has moved this petition with a prayer that the order impugned and the entire proceedings of the criminal case be quashed.
I have heard learned counsel for the applicant, learned counsel for the opposite party no. 2 as well as learned A.G.A. and also perused records and the the rulings filed from both the sides.
It has been contended from the side of the applicant that the criminal case filed by the opposite party no. 2 is based on false and fabricated facts; that keeping in view the allegations levelled in the complaint, at the most it may be a case of breach of contract of civil nature and the learned Magistrate has erred in summoning the applicant under Section 406/420 I.P.C. It has further been contended that all the acts such as execution of work and advances paid to opposite party no. 2 etc. had taken place at Mumbai and, therefore, the court at Allahabad has no territorial jurisdiction.
On the other hand it has been submitted from the side of opposite party no. 2 that the order was placed by the applicant through telephone and the order was received in the city of Allahabad and from the very beginning the intention of the applicant was dishonest and he wanted to deceive the opposite party no. 2 and he had already made up his mind that he will not pay the dues and other charges to opposite party no. 2.
In the instant case the learned Magistrate had summoned the applicant under Section 406/420 I.P.C.
The definition of criminal breach of trust has been given under Section 405 I.P.C. If we analyse this definition it will be clear that the first ingredient of the section is "entrusting with property, or with any dominion over property". This ingredient is an important ingredient of the offence of criminal breach of trust and from the records it is evident that in the instant case this ingredient is missing all together. Therefore, summoning of the applicant under Section 406 I.P.C. cannot be sustained.
Now let us examine the ingredient of Section 415 I.P.C. in which the offence of cheating has been defined. Section 415 I.P.C. is as follows :
"415. 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"."
In this connection, my attention has been drawn towards the case law 2009 (1) SCC (Cri.) 996 ( V.Y. Jose and another Vs. State of Gujarat and another). In para 12 the Supreme Court has said as follows :
"12. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or doshonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out."
Similar opinion has been expressed by the Supreme Court in 2009 (2) SCC (Cri.) 941 ( S.V.L. Murthy and others Vs. State Rep. By CBI, Hyderabad and others).
From the side of opposite party no. 2 the judgment and order dated27.10.2010 passed by this Court in Criminal Misc. Application No. 33856 of 2010 ( Anand Kumar Porwal Vs. State of U.P. and another) has been relied upon.
I have gone through all the three case laws mentioned above. In the instant case prima facie there is nothing which may indicate that the applicant has any dishonest intention when he entered into the contract with opposite party no. 2. Therefore, summoning of the applicant under Section 420 I.P.C. cannot be allowed to sustain. From the perusal of the complaint itself it is evident that it is a simple case of breach of contract. This contract had taken place at Mumbai. No part of it has been executed in the city of Allahabad. From the entire records it is evident that opposite party no. 2 has misused the process of law. The learned Magistrate has, in a mechanical and routine manner, summoned the applicant which shows that he did not care even to read the complaint in a proper manner. Such type of conduct from a judicial officer is not desirable.
On the basis of the above discussion, I am of the view that there is force in the petition and it must succeed.
The petition under Section 482 Cr.P.C. is allowed. The entire proceedings of Criminal Case No. 3305/09 (Prem Chandra Vs. Sumit Bhalotia) including the summoning order dated 22.8.2009 are quashed.
Order Date :- 26.9.2011 S.B.