JUDGMENT
Swamikkannu, J.
1. This is an appeal by the complainant K. Periasami against the judgment dated 11-3-1980 in C.C. No. 249/78 on the file of the Court of the learned Sub-Divisional Judicial First Class Magistrate, Usilampatti, finding that the complainant has not proved his case against the accused A-1 Rajendran and A-2 Kandasami the respondents herein-beyond all reasonable doubt and acquitting them under Section 248(1), Cr. P.C. It is also held by the lower court that the remedy for the complainant is available only in a Civil Court.
2. The case of the complainant against the accused is in brief as follows : – The complainant is employed in Benner India, Madurai. He had arranged for a pleasure tour for several places. For 26-1-1978 to 30-1-1978, the complainant as well as the persons who were employed with him, the members of their families and friends joined together and arranged for a pleasure tour. A-2 Kandasamy is living in the adjacent house of the complainant. The complainant and P.W. 2 Annakkodi approached A-2 and in turn A-2 took both of them to A-1, who is the proprietor of Sankar Bus Transport Company on 30-12-1977. At that time, A-1, Rajendran assured that he would give the bus TNU 9522 for the pleasure tour, and from the complainant through A-2 Kandasamy, A-1 Rajendran obtained Rs. 100/- on 30-12-1977. On 25-1-1978, the complainant and P.W. 2 Annakkodi came to the bus company owned by A-1 Rajendran and gave Rs. 24257- to A-1 Rajendran through A-2 Kandasamy. A-1 Rajendran gave a receipt for Rs. 24257-. Rs. 100/- was credited for brokerage in favour of A-2 Kandasamy, The balance amount was taken by A-1 Rajendran.
3. A-1 Rajendran who got the money, informed the complainant that as agreed he could not give a bus for the tour. He further stated that no bus was available with him : but he would arrange temporarily for another bus to go up to Palani, It was also agreed that the bus arranged for taking the tourists would be sent by him to Palani. Believing the above representation, the complainant and the persons belonging to his party started their journey. On 26-1-1978 they came to Palani in the morning at about 5-15 a.m. They were waiting at Palani for the bus which was agreed to be given to them for the journey. They were waiting there till 27-1-1978. In the meanwhile, a telegram was sent to A-1 on behalf of the complainant. For that, A-1 gave a reply stating that since no bus had come, the tour had to be cancelled and they could go to Madurai. After seeing the said telegram, the tour was cancelled, after undergoing strenuous trouble and they were thus deceived.
4. Thereafter, the bus which had to be given through Paulraj was stopped at Amaravilla Check-post at Kerala. The details regarding the same is known to the accused. Though the bus was thus stopped on 25-1-1978 as mentioned above and this fact was also known to the accused, inasmuch as the bus had not been given to the complainant for tour, it amounts to cheating. In the above manner, both the accused, according to the complainant, had deceived the complainant. From the complainant, a sum of Rs. 26257-had been obtained by the accused. Thus, the complainant was put to unexpected expenses. Thus, the accused are liable to be punished under Section 420, I.P.C. read with Section 120-B, I.P.C.
5. On behalf of the complainant, P.W. 1 Periyasaniy, P.W. 2 Annakkodi, P.W. 3 Paulraj and P.W. 4 Abdul Majeeth, Motor Vehicles Inspector, were examined. Exs. P.1 to P. 11 were filed on behalf of the complainant. Ex. P. 1 is the receipt dated 30-12-1977; Ex. P. 2 receipt dated 26-1-1978; Ex. P. 3 the reply telegram given from Sankar Transport; Ex. P. 4 Motor Vehicle Inspector’s certificate; Ex. P. 5 Special permit; Ex, P,6 statement of Paulraj; Ex. P. 7 Check report, Ex. P. 8 Duty Register, Ex. P. 9 similar document as Duty Register; Ex. P. 10 entries in the Duty Register marked as 72 and 76; Ex. P. 11 permit dated 22-1-1978, which are filed. No document was filed on behalf of the accused. No witness was examined on behalf of the accused.
6. P.W. 1 Penyasamy has stated in his evidence that he is employed in Benner India, that A-1 is the owner of Sankar Bus Transport Company, that A-2 is living in the adjacent house of P.W. 1, that for going to Palani and Tirupathi, a five days’ tour was arranged and for the same, through A-2, a bus was arranged with A-1. Rs. 100/- was given as advance. Ex. P. 1 is the receipt for the same. The balance of Rs, 24157- was also paid. Ex. P. 2 is the receipt for the same. On 26-1-1978, as agreed, the bus was not sent. A telegram was sent intimating the same. A-1 gave a reply telegram asking the complainant to cancel the tour and go to Madurai. The said reply telegram is Ex. P. 3. P. W. 1 came to know that the above bus agreed to be sent to him by A-1 Rajendran had been stopped at the check-post in Kerala even before that time and by concealing that fact, the accused had deceived the complainant. P.W. 1 has further stated that with respect to the same, he had incurred Rs. 15,000/- as damages.
7. P.W. 2 Aqnakkodi has stated in his evidence that he is employed as a worker in Benner India Company. P.W, 1 is working along with him in the said company. P.W. 2 had also given similar evidence as given by P.W, 1. After examining both P.W. 1 and P.W. 2, the lower Court had framed charges against the accused under Section 420, I.P.C. read with Section 120-B, I.P.C, When the charges were read over to the accused in Tamil, they pleaded not guilty. Thereafter, both P.W. 1 and P.W. 2 were cross-examined. Subsequently, P.W. 3 and P.W, 4 were also examined,
8. P.W. 3 Paulraj has stated in his evidence that he belongs to Jakkappatti, that on 24th and 25th January, 1978. he had arranged for a bus at Sankar Bus Transport Company and while proceeding to Trivandrum on tour, the said bus was checked and stopped. Since the persons belonging to the bus transport company helped them, in a lorry he returned to his place- When P.W. 1 met P.W, 3 at Madurai, he informed about the same, P.W, 1 had informed P.W. 3 about the deceit perpetrated on them by the persons owning Sankar Transport Bus Company. P.W. 3 also had informed about their experience.
9. P.W. 4 Abdul Majeeth is an Assistant Motor Vehicles Inspector, Kerala. On 24-1-1978, when he was in charge of Amaravilla Check-post, he seized the permit relating to TNU 9522 on the basis that on 22-1-1978 itself it was examined and that the said vehicle was further misused against law. Ex. P. 5 is the said permit. Ex. P. 6 is the statement of the passenger in the bus. Ex. P. 7 is the check-report. Ex. P. 8 is the Duty Register. The parts therein which were marked as 72 and 76 are Exs. P. 9 and P. 10 respectively. Ex. P. 11 is the permit which was examined on 22-1-1978. Thereafter, the proprietor of the vehicle was informed regarding the same and a case was launched before the Court. P.W. 4 had given evidence to the above effect.
10. After the prosecution witnesses were examined, the accused were questioned under the provisions of Section 313, Cr. P.C. The accused stated that they were not guilty of the offences with which they were charge’! Though they stated that they had witnesses to be examined on their side, yet they did not examine any defence witness.
11. On the question whether the complainant had proved his case against the accused beyond all reasonable doubt, as mentioned above, the lower Court came to the conclusion that with respect to the money said to have been entrusted by the complainant with A-1, the remedy is available only in Civil Court and that so far as A-2 is concerned, there is no evidence available on record to hold that he had deceived the complainant. Under these circumstances, both the accused/respondents herein were acquitted under Section 248(1), Cr. P.C. by the lower court. Aggrieved by the above decision of the lower Court, the complainant has come forward with this Criminal Appeal.
12. The point for consideration in this appeal is whether the complainant, has proved his case against the accused beyond all reasonable doubt.
13. In the instant case before us, the evidence that has to be scrutinized carefully is the evidence of P.W. 4, the Motor Vehicles Inspector, He has given evidence to the effect that the bus that had been agreed to be given to the complainant for tour had been stopped at Kerala. From the evidence of P.W. 4 alone it can be ascertained as to whether the accused had an intention to deceive the complainant on the date in question. The bus, which was agreed to be given to the complainant had been stopped at Amaravilla Check-post on 24-1-1978. If A-1 had known about such, stopping of the bus at Amaravilla Check-post on 24-1-1978, when he received the sum of Rs. 24257-, certainly the accused would be liable for having cheated the complainant. From the evidence available on record, it is clear t hat the accused herein had no knowledge on 25-1-1978 when they received Rs. 24257-about the stopping of the bus at Amaravilla check-post on 24-1-1978. From the evidence of P.W. 4, it is specifically clear that A-1 had no knowledge on 25-1 -1978 about the stopping of the bus at Amaravilla check-post on 24-1-1978. From the evidence of P.W. 4 it is clear that he informed about the stopping of the bus to the office of A-1 through phone at 1 p.m. on 25-1-1978. It was only the son of the proprietor of Sankar Bus Transport Company, who had then talked with P.W. 4 through phone. P.W. 4 also states that he does not remember the name of the person who talked with him through phone at that time. It is seen from the evidence that the balance amount for the tour had been obtained by A-1 only on 25-1-1978. In the complaint given by the complainant, it is only mentioned that on 25-1 -1978, he had gone to Usilampatti and given the balance of amount to A-1. The complainant has not specifically stated in the complaint about the time when he gave the money to A-1. Further, no one can say with certainty that it was A-1 to whom information was given by P.W. 4 regarding the stopping of the bus at Amaravilla check-post. P.W. 4 states that he was talking through phone to the son of the proprietor of Sankar Bus Transport Company. The evidence of P.W. 4 regarding this aspect cannot be relied on especially when he states that from a corner place in Kerala, he was talking with a person at Usilampatti, which is separated by a long distance of several miles and still specifically states that it was to the son of the proprietor of the Sankar Bus Transport Company that he was informing about the stopping of the bus. It is quite possible that some other persons in the said office would have also spoken to P.W. 4 through phone at that time. It is doubtful whether any of the employees in the office would have informed about the stopping of the bus to the proprietor of Sankar Bus Transport Company. Thus, we see that there is no possibility of A-1 knowing definitely about the stopping of the bus at Amaravilla check-post on 24-1-1978. Thus, it is seen that beyond the knowledge and control of A-1, the bus had been stopped at Kerala. On the day of the contract, viz., 30-12-1977, and when A-1 had received Rs. 100/- it would not have been possible for A-1 to expect that the concerned bus would be stopped at Kerala on 24-1-1978. Under the circumstances, it cannot be held that A-1 had deceived the complainant.
14. It is also relevant in this connection to note that A-1 had given a spare bus to the complainant at the appointed hour. From this, it is clear that there was no intention on the part of A-1 to deceive the complainant Though the bus had been stopped beyond his control, yet soon after knowing that the bus had not come, A-1 had at once given telegram to the complainant and the members of the tour committee that they could cancel the journey, with a good intention. Thus, when A-1 had given a telegram requesting the complainant and his party to cancel the tour, it cannot be held that A-1 had deceived the complainant. If the intention of A-1 was to deceive the complainant he would not have given a spare bus instead of the bus which was agreed to be given for tour to the complainant. A-1 would not have also given a telegram, with a good intention, to the complainant requesting him to cancel the tour. Further, there is no justification for assuming that on 30-12-1977, the date of the agreement with the complainant, A-1 would have expected that the bus in question would have been stopped at a particular place. Thus, there is no evidence on record to show that A-1 had deceived the complainant.
15. It is also relevant in this connection to note that in the instant case before us, a sum of Rs. 24257- was received by A 1 undertaking to give a bus owned by him for the use of the complainant and his party for tour. Due to unavoidable circumstances, the bus could not be entrusted to the complainant and his party for tour. So, the case can be only classified as one falling under a civil dispute under the head ‘breach of contract’. The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole criterion. Mere breach of contract cannot give rise to a criminal prosecution. In the instant case before us, there was only a breach of contract, giving rise to a civil liability and not cheating. A careful scrutiny of the entire evidence available on record, both oral and documentary, clearly shows that at the time when A-1 had entered into a contract with the complainant, he had absolutely no knowledge about the bus having been stopped at Kerala near the Amaravilla check-post. Therefore, at the most, the instant case can come only under the category of “breach of contract”, the remedy for which is available only in a civil court. Mere ‘breach of contract’ is not an offence. There should be a fraudulent or dishonest intention necessary to constitute an offence under Section 420, I.P.C.
16. It is a well settled principle of law that where there is no clear and conclusive evidence of the criminal intention of the accused at the time when the offence is said to have been committed and where the party said to be aggrieved has an alternative remedy in the Civil Court, the matter should not be allowed to be fought in the Criminal Courts.
17. In the instant case before us, it is admitted by the complainant that A-1 owns number of buses. When he owns, thus, several buses, there is nothing wrong in A-1 entering into a contract similar to the one that he had entered with the complainant herein. The said contract, that he had thus entered into with the complainant, could not be complied with as per the terms of the said contract by A-1 due to unavoidable circumstances and circumstances which were not expected by him, nor known to him at the time of entering into the contract with the complainant. At any rate, A-1 cannot be imputed with the knowledge of his bus, which was agreed to be given to the complainant for tour, having been stopped at Amaravilla check-post on 24-1-1978, during the time when he received the money from the complainant through A-2. As already observed, the distinction between a case of a mere “breach of contract” and one of “cheating”, depends upon the intention of the accused at the time of the alleged inducement, which may be judged by his subsequent act; but of which the subsequent act is not the sole criterion. In the instant case before us, at no point of time, it is seen from the evidence, that A-1 had any intention to cheat the complainant. As already mentioned, without his knowledge, the bus of A-1 had been stopped in Kerala. A-1 did provide a spare bus to the complainant and his party soon after knowing that the bus which he promised to give to the complainant and his party for tour was not available for giving to them. He had also given a telegram to the complainant to that effect requesting him to cancel the tour. Under the circumstances, it cannot be held that A-1 had deceived the complainant. There is absolutely no evidence on record to hold that A-2 had also deceived the complainant. Under the circumstances, the lower court is correct in having acquitted both the accused/respondents herein under Section 248(1), Cr. P.C. There is no merit in the appeal. Hence, the appeal is dismissed.
