ORDER
G.A. Kuchhai, J.
1. This petition under Section 561-A, Cr.P.C. has been presented by the accused/petitioners to quash proceedings under Section 406/420, RPC pending before Chief Judicial Magistrate Srinagar against the petitioners at the instance of respondent/ complainant.
2. The complaint before the Chief Judicial Magistrate, Srinagar against the petitioners has been filed by the respondent with the allegation that the petitioners carry on business under the name and style of KHATAI SONS, South India, Cochin having their sub-branch at Doulatabad, Now pora, Srinagar. That the respondent used to supply embroidered Numdas to the petitioners on order and an amount Rs. 24,651.85 remained in arrears with the petitioners. It is further alleged that in August, 1981, the petitioners approached the respondent-complainant to supply more goods in the shape of Numdas which the respondent-complainant, in the first instance, declined to supply for non-payment of earlier amount kept in arrears, but on the assurance of accused-petitioners that amount of arrears and for the goods to be supplied, will be paid by them to the extent of 50% of the Invoice amount on receipt of goods by the transporters and rest of 50% on receipt of goods. On this assurance of the petitioners the respondent was induced to supply Numdas on 12-8-81, and 24-8-81 through NATCO Roadways, valuing at Rs. 1,34,109.00. That the petitioners out of the arrears of Rs. 24,651.85 paid only Rs. 20,000/- by cheque and for the fresh supplies they paid only Rs. 25,000/- on 12-10-1981. After that no amount was paid to the complainant/ respondent.
The petitioners-accused, in fact, had intention to deceive the complainant-respondent from the beginning, therefore, induced him by deceitful means to supply the goods, cost of which has been appropriated by the petitioners to their own use.
3. On presentation of this complaint, learned Chief Judicial Magistrate, after holding enquiry issued process under Section 420, R.P.C. against the petitioners/accused who have presented this revision to quash the proceedings pending against them before the C.J.M. Srinagar.
4. I have heard learned Counsel for both the parties.
5. Mr. C. M. Koul, appearing for the petitioners argued that from the perusal of the complaint, the ingredients of Sections 406 and 420, R.P.C, are not made out. Since process has been issued for an offence under Section 420, R.P.C. only, this Court is not required to observe elaborately in respect of the offence , under Section 406, R.P.C., for which, no process has been issued against the petitioner. Sufficient it is to be observed that from a bare perusal of the complaint one comes to the conclusion that no entrustment appears to have been made by the complainant to the accused. The complainant and accused have entered into a regular trade bargain. The accused-petitioners having given order to supply the goods which the complainant-respondent has, admittedly, despatched to the address of the petitioners. This cannot be said entrustment in the strict sense in which in normal course ‘entrustment’ of cash or kind is made for a particular period or with certain direction f or the disposal of such goods by the trustee,
6. In the case in hand, the goods have been supplied by the complainant-respondent on the order of the petitioners, and once the goods are received by the petitioners they are at liberty to dispose of these goods on the terms and conditions suited to them and not to the complainant. Complainant in this case has supplied the goods to the petitioners without any pre-condition except cost of the same which allegedly is in arrears against the petitioners. The element of ‘entrustment’ is totally missing despite averment in the complaint to the same effect. Once the goods are put at the disposal of the petitioners for onward trade, question of entrustment does not arise. The learned Court below has rightly declined to issue process for an offence under Section 406. R.P.C.
7. Mr. C. M. Koul, appearing for the petitioners argued that the complainant-respondent did not comply to the commitment made to him by the petitioners in supplying yarn/fine wool within the specified time limit, therefore, the petitioners cannot be held guilty for cheating.
8. The learned Counsel Mr. R. N. Koul, appearing for the respondent-complainant, submitted that the respondent-complainant is only required to prove the contents of the complaint in accordance with the allegations made and the points raised regarding supply of goods in a specified manner, cannot be agitated at this stage. Argument of Mr. R. N. Koul, appears sound. In a petition under Section 561-A, Cr.P.C. facts need not to be agitated. The petition has to be considered only on the point, whether the process issued by the trial Court of proceedings pending there are in accordance with law and has the Court utilised the legal discretion properly, therefore, the argument of Mr. C. M. Koul appearing for the petitioners, cannot be accepted in this petition.
9. For an offence under Section 420, R.P.C., the complainant, among other ingredients has to make out two basic ingredients for issuing the process. Firstly, ‘cheating’ and secondly, ‘dishonest inducement’ for delivery of property by the person so cheated and induced. Cheating is defined under Section 415, R.P.C. where the first ingredient is the ‘deception’, which means false representation to the person so deceived i.e. to represent the fact which is not true and is delivered intentionally to induce a person to act upon such false representation in order to do an act which the victim would not do otherwise if aware that such representation is not true. The manner of fraud played should be patently narrated in the complaint in order to make it clear that the person represented was not factually true and because of such false pretendence the person (victim) got influenced to do an act what he would not have done in ordinary course. The fraudulent intention of accused must be patent on the face of the complaint. If the case in hand is tested on the above analysis, it is easy to conclude that no deception has been played on the respondent-complainant by the petitioners. Element of cheating cannot be gathered for the fact that parties to the proceedings are known to each other prior to lodging of the complaint, therefore, there is no deception in identity of the petitioner-accused.
The petitioner is admittedly a businessman carrying on business under the name and style of KHATAI SONS to the” knowledge of the respondents therefore, no deception, regarding trade appears to have been played by the petitioners.
10. Then regarding identity of the petitiones, there is no concealment, because, the respondent admits the identity of the petitioners, no other allegation of cheating can be gathered from the complaint against the petitioners. Thus, the first ingredient of cheating in an offence under Section 420, R.P.C. is not made out at all in the complaint.
11. Then is dishonest inducement, the second ingredient. This fact cannot be ruled out, the petitioner induced to supply more goods with allurement that petitioners would pay respondent arrears which run into thousands of rupees. This fact would have influenced the complainant-respondent to supply fresh goods in the hope that he would be paid arrears also. Let us presume that inducement by the petitioners to the complainant has been practised but the complainant has to prove that such inducement was dishonest. According to the complainant himself, the petitioner made part payment only towards the arrears after fresh supplies were made to them and they also made part payment to the respondent towards fresh supplies which cannot be construed a fraud played on the complainant. The breach in the manner or method, mode of payment of arrears and cost of fresh supplies can be said only a breach of contract and it cannot attract criminal liability to the petitioners when the complainant has civil remedy open to redress his grievance against the petitioners.
12. The simple and brief case of the complainant as appears in the complaint, is that the accused-petitioners owe the respondent a huge amount as detailed in the complaint on account of arrears and fresh supplies made which the accused appear have failed to pay according to the expectations of the complainant or in accordance with the promise made by the petitioners. The nonpayment of amount which is the main grievance in the case, will not attract criminal proceedings against the petitioners.
13. For an offence under Section 420, R.P.C. mere inducement is not sufficient but it must be coupled with cheating, which, in my opinion is totally absent in the complainant’s case lodged against the petitioner.
14. The parties have trade relations with each other and default, if any, in payment is a natural consequence which can be redressed before a civil forum in the circumstances of this case.
15. For the reasons given, I am of the opinion that the Court below has erred in issuing process under Section 420, R.P.C. against the petitioners which patently appears abuse of process of the Court and attracts provisions of Section 561-A, Cr.P.C. to quash the same.
16. The result is that the petition under Section 561-A, Cr.P.C. is allowed and the proceedings under Section 420, R.P.C. pending against the petitioners before the Chief Judicial Magistrate, Srinagar, stand quashed.