JUDGMENT
Nripendra Kumar Bhattacharyya, J.
1. By this revision the accused petitioner has come up before this Court praying for quashing the Complaint Case No. 175 C of 1993 pending in the court of the learned Judicial Magistrate, 2nd Court, Howrah, and also for setting aside the order dated 2nd February, 1994 passed by the said learned Magistrate in the said case.
The fact silhouetted behind this case is that the opposite party 1 herein filed a petition of complaint before the learned Chief Judicial Magistrate, Howrah, alleging, inter alia, that the complainant is the proprietor of M/S. R.A. Pipe Fitting Co. of 12/5, Musalman Para Lane, P.S. Bantra, District Howrah, and deals in the business of iron pipe and pipe fittings. The complainant opposite party No. 1 received a letter from the accused petitioner herein on 11.10.91 asking for delivery of certain materials on terms that payments should be deferred by ninety days from the date of the delivery of the materials. The complainant opposite party met the accused petitioner on 27th July, 1991 at Madurai and talked about the letter for supply of the materials. On believing the representation of the accused petitioner, the complainant opposite party after coming back to Howrah started supplying pipe fittings on 11.11.91 and submitted his bills for payment. The complainant opposite party was not paid the price of the materials supplied till 11.12.92 and being apprehensive, the complainant opposite party made ta-gids for payment and after deferring such payments the accused petitioner made over three cheques bearing No. 093977 dated 15.7.92 for Rs. 50,000/-093978 dated 30.8.92 for Rs. 50,000/-, and 092979 dated 15.8.92 for Rs. 52,000/- only on Indian Bank, T.V.S. Nagar Branch, Madurai, in favour of the complainant opposite party. The said three cheques were tendered to the Bank through the Federal Bank Limited, Howrah Branch at Bantra, Howrah, but the cheques amounting to Rs. 50,000/- were returned as the amount was not duly covered. The third cheques was returned with the endorsement that the accused asked for stopping payment. By a letter dated 14th October, 1992 the accused petitioner promised payment but as the payment was not made, again she complainant opposite party made tagid by a lawyer’s letter dated 2nd November, 1992. From time to time the accused petitioner by different letters promised payment and on 18.1.93 the complainant opposite party demanded immediate payment of money from the accused petitioner. The accused petitioner denied all transactions. Hence the petition of complaint. Summons was issued after taking cognizance by the learned Magistrate. Evidence was gone into and the learned Magistrate framed a charge against the accused petitioner under Section 420 of the Indian Penal Code, though prayer was made before the learned Magistrate for discharge of the accused petitioner as there was no ingredient of cheating as contemplated under Section 420 of the Indian Penal Code.
Appearing for the petitioner, Mr. Tapan Kumar Dutt, learned Advocate, contended by -referring to the petition of complaint and the deposition of the witnesses that the petition of complaint and the deposition do not show any initial inducement by the accused petitioner to the complainant opposite party and as such the ingredient of Section 420 I.P.C. being absent the proceeding should be quashed. He further contended that at the initial stage there was no inducement. According to him, as there was no case of initial inducement by the accused petitioner to the complainant opposite party, the proceeding for the offence under Section 420 I.P.C. is not competent and liable to be quashed. In this connection, he referred to some decisions, to wit, 1983 Crl LJ 106, V.V.L.N. Chari v. N.A. Martin (Kerala), 1987 Crl LJ 1446, G.K. Mahanty v. Pratap Kishore Das (Orissa), , Hari Prasad Chamaria v. Bishnu Kumar Surekha, and 1991 Crl LJ 1603 Radha Raman Sahu v. Trilochan Nanda (Orissa). Mr. Dutt contended that in view of the ratio that has been deduced in those cases that in order to constitute an offence under Section 420 I.P.C. if there is no initial inducement by the accused to the complainant then no offence under Section 420 I.P.C. is constituted.
Mr. Tapan Kumar Banerjee, learned Advocate appearing for the complainant opposite party No. 1 herein, on the other hand, contended that from the subsequent conduct of the accused petitioner mens rea can be inferred and if the cheques were given during the time of transaction knowing fully well that those cheques were not genuine, that would constitute dishonest intention and inducement by the accused petitioner at the initial stage, In this connection, Mr. Banerjee referred to some decisions reported in 1989 Crl LJ 443 Radhakrishan Dalmia v. Narayan (M.P.), 1978 Crl LJ 1360 M.M. Maternity & Construction Committee v. K. Rajmalla (A.P.) 1982 Crl LJ, 1482, Bholanath v. State (Delhi) and Ramavatar Gupta v. Gopal Das. In all those decisions it has been held that from subsequent conduct it can be inferred that the accused petitioner induced the complainant opposite party at the initial stage.
Heard the submissions of the learned Advocates for the parties and considered the materials on record.
In order to constitute an offence under Section 420 I.P.C. there must be some inducement by the accused petitioner to the complainant at the initial stage. In the instant case, the cheques were given to the complainant opposite party not during the time of transaction which took place subsequent to 27th October, 1991 and supply of the materials was complete on 30th January, 1992 and the cheques were given subsequent to that. So during the time of transaction no cheque was given to the complainant opposite party by the accused petitioner ; only a promise was made that payment should be made within ninety days from the date of delivery of the materials. The deposition of the complainant on oath as P.W. 1 is that on getting the order of supply from the accused petitioner the complainant opposite party had gone to Madurai, verified about the conduct of the accused and talked to the accused regarding his order. After being satisfied, he started supplying materials. So from his own deposition it will evince that during the time of the order and during the time of the talk the complainant opposite party satisfied himself about the conduct of the accused petitioner. So during the time of the transaction there was no inducement. If there was. no inducement at the initial stage, subsequent inducement will not constitute the offence under Section 420 of the Indian Penal Code. As there was no initial inducement in this case, the case under Section 420 I.P.C. is not maintainable.
In that view of the matter, I hereby quash the entire proceeding being Case No. 175 C of 1993, including the order dated 2.2.94 as passed by the learned Judicial Magistrate, 2nd Court, Howrah.
The revisional application is thus allowed.
