ORDER
M.P. Verma, J.
1. This Case has been brought for quashing a proceeding pending against the petitioners under Section 420 of the Indian Penal Code. In short. It is said that the order of the learned Sub-divisional Magistrate of Begusarai taking cognizance of the offence on the 4th July, 1969 is illegal.
2. The short facts of the case are as follows: Petitioner No. 2 is the son of petitioner No. 1 and they carry on business In the Grains at Masrakh Bazar. PS. Masrakh in the district of Saran in the name and style of Firm Harnarain Sah-Biswanath Prasad. Petitioner No. 3 is an employee of that firm. Opposite party Tribeni Lall is said to be a partner of a firm known as Ramji Prasad Daya nand which deals in grains at Ballia Bazar. P.S. Ballia, in the district of Monghyr. It is alleged that the firm of the petitioner was carrying on business in grains with the firm of the opposite party since a pretty long time. On 16th April 1969. petitioners 2 and 3 went to the firm of the opposite party and purchased 75 bags of gram, weighing 174 maunds 18 Kgs. at the rate of Rs. 77.50 per quintal the total value being Rs 5.667 24. paise. These petitioners did not pay the price in cash and promised to pay the price within three days.
This money was not paid for which some reminders were sent to the petitioners. Finally, on 2nd July. 1969. the petitioners, it Is alleged, refused to make the payment. Thereafter, the opposite party filed a complaint before the learned sub-divisional Magistrate of Begusaral on 4th July. 1969. The complainant Tribeni Lal was examined on solemn affirmation and the learned Sub-divisional Magistrate took cognizance of an offence under Section 420 of the Indian Penal Code and the case was sent to Shree Q. Hoda, Munsif. Magistrate. First Class, for trial.
3. This application has been filed under the provisions of Section 561. A of the Code of Criminal Procedure (hereinafter referred to as “the Code”) and It is prayed that the entire proceeding should be quashed as being illegal, because no offence of cheating has been made out in the complaint petition. It Is well known that there is a thin line of difference between a case of breach of contract and a case of cheating. Every case of breach of contract cannot be cheating. The very opening line of Section 415 of the Indian Penal Code, which defines. ‘Cheating’ reads:
Whoever, by deceiving any person, fraudulently or dishonestly induces ‘the person so deceived to deliver any property….
So the concept of deception should exist from the very start of the transaction. If that is wanting, there would not be any criminal offence of cheating, even though there is no payment of the price of the goods taken on credit. I can do no better than to quote their Lordships of the Supreme Court in Mahadeo Prasad v. State of West Bengal “if the Appellant had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no Intention whatsoever to pay but merely said that he would do so in order to Induce the complainant to part with the goods then a case of cheating would be established.
4. In the present case It was not the solitary transaction between the complainant and these accused petitioners. In the petition of complaint itself it has been mentioned that there were mutual dealings between the accused persons and the complainant for some time past and articles used to be purchased on credit or against cash payment, and if there used to be some balance due, the same used to be paid afterwards. Learned Counsel appearing for the opposite party has argued that the intention whether dishonest or otherwise can be inferred only when some evidence is given. I am not ready to accept this argument. It is well known that a mere allegation of fraud or cheating is not enough. The facts themselves should show that there has been a fraud or cheating. The matter can be decided even when no evidence has been given and that would be on the basis of the complaint itself.
Even after trial this matter can be decided after scanning the evidence on the point. In Kapur’s case , It was pointed out that there are several categories of cases in which a proceeding can be quashed by the High Court. By way of illustration, three such categories were mentioned. The first category consists of those cases in which the complaint or the first information report, on the face of it. does not disclose any offence. We are primarily concerned with this class of cases at the present moment. On a plain reading of the complaint petition and also scanning the statement of the complainant on solemn affirmation in the Instant case, there is no indication that there was dishonest intention on the part of the petitioners to cheat or defraud the complainant.
5. Similar cases were subject. matter of discussion in, this Court. In Bishnu Kumar Sureka v. State of Bihar 1970 Pat. LJ R. 120. it Was observed that mere breach of contract cannot give rise to a criminal prosecution, where there is no clear intention of the accused at the time the occurrence, is said to have taken place, and when the party aggrieved has alternative remedy in the Civil Court, the matter should not be allowed to be fought In the Criminal Court Similar observations were made in the case of Kamakhya Narain Singh v Ram Lakhan Singh 1970 BLJR 571. There it was held that since the materials on the record give no indication of criminal intent on the part of the petitioner and the petition of complaint does not disclose any criminal offence to Justify petitioner being put on trial, the proceeding taken against the petitioner is quashed. In the case of the Sheo Kumar Singh v. Bhuneshwar Singh 1971 BLJR 61. it was observed that cases may also arise where the allegations in the first information report or the complaint even if they are taken at their face value and accepted in entirety, do not constitute the offence alleged, and in such cases no question of appreciating evidence arises: it is a matter merely of looking at the complaint or the first Information report to decide whether the offence is disclosed or not.
6. Learned Counsel for the peti. Honer has further urged that, even according to the complaint petition, only petitioners 2 and 3 were present at the Gaddi of the complainant opposite Party at the time the transaction was entered into still, the learned Sub. divisional Magistrate, without applying his critical mind, took cognizance against petitioner No. 1 also, who had no hand in the actual transaction on the alleged date.
7. The other argument advanced on behalf of the complainant. opposite party does not require a decision. But, as the point has been raised before me. I can only make a few observations. It has been argued that in this petition the main ground for giving relief to the petitioners is that the order of the learned Sub-divisional Magistrate taking cognizance is illegal and should be quashed, The petitioners ought to have come In revision against that order under Sections 435 and 439 of the Code of Criminal Procedure. It is only with a view to circumvent the bar of the limitation prescribed by article 131 of the Limitation Act that they have come to this Court labelling their petition under Section 561 A of the Code. In some cases this argument may be tenable. When a particular order is challenged, then the remedy available to an aggrieved party is to move in revision under Section 435 of the Code. But when a particular order is not challenged and the entire proceeding is said to be vitiated and illegal because of other considerations, then, perhaps Section 435 is not attracted.
Section 561 A of the Code was introduced in the statute book after a decision of the Allahabad High Court to the effect that the High Court had no power in certain matters to give relief to an aggrieved party. The legislature then came forward and in express terms provided that the High Court had inherent power to do justice in the case and to stop an abuse of the process of the Court. A new right was not conferred on the High Court, but the court had such right previously also and it was only confirmed in express terms. In suitable cases, the High Court should decline to exercise its extraordinary power under Section 561 A of the Code, when the design of the petitioner appears to be to pass over the period of limitation by his negligence and not availing of the remedy available to him under Section 435 of the Code. It has been held in a number of cases both on the Criminal and the Civil sides that the extra ordinary power given to the High Court should not be exercised when another prescribed procedure is available to the aggrieved party. Any way in this case this question need not be discussed any further because the proceeding is being abashed on the ground that the petition of complaint itself does not disclose any criminal offence.
8. In the result, this petition succeeds and is allowed and the impugned order of the Sub-divisional Magistrate, dated the 4th July. 1969. in Case No. 6300 of 1969. taking cognizance against the petitioners under Section 420 of the Indian Penal Code and the subsequent proceedings In pursuance thereof are quashed.