TaxTMI 
TaxTMI 
2008 (12) TMI 809
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....and install a machine to purify and desalt the dyes of a particular quality and quantity with the firm. The total manufacturing cost of the said machine worked out to be at Rs. 17,96,488/- including excise duty and other incidental charges. Second respondent paid a sum of Rs. 3,00,000/- to the firm as advance and part payment of the said consideration. There has been a change in the specifications of the said machine purported to be on the request of the second respondent in terms whereof two extra modules thereto were provided. A revised offer was made. The said machine, although was to be manufactured and supplied within a period of three months, the same was not complied with. 4. A partner of the second respondent along with its technical engineer visited the site of the firm. Allegedly, it was found that the said machine did not conform to the specifications contained in the order placed with the firm. It refused to take the delivery thereof. To the said effect, the second 3 respondent, by a letter dated 7.4.1998 called upon the firm to return the amount of advance, stating: "Please take a trial your Laboratory as discussed and concentrate between 25 to 30% & collec....
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....e for which order was placed which was found out on inspection of the site of the firm. (2) Although a sum of Rs. 3,00,000/- was paid by way of advance, the said amount has not been returned which manifests dishonest intention on the part of the firm. (3) In any event, the High Court has rightly refused to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure which can be resorted to only in rarest of rare cases. 9. We have been taken through the complaint petition in its entirety. Indisputably, the parties entered into a contract in terms whereof the firm was to manufacture a machine to purify and desalt the dyes of a particular quality and quantity. The specifications for the machine were changed. First appellant issued a letter dated 20.2.1998 to the complainant, stating: Further to our letter No. P:G:971:97 dated 2.2.98 and subsequent visit of our Mr. Sunil Rao. Please find enclosed herewith our revised offer for your reference. You may note that we are giving two module extra free of charge in the system so that the total number of modules becomes 105 no's instead of the committed 103 no's. We are also enclosing her....
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.... 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. 13. No exception can be taken to the submission of Mr. Jain that it is not necessary to reproduce the wordings of a penal provision in the complaint petition, but, there cannot be any doubt whatsoever that the facts disclosing the ingredients of the offence must be averred. There cannot, furthermore, be any doubt that only because civil law can be taken recourse to would not necessarily mean that criminal proceedings should be barred as has been opined by this Court in Pratibha Rani v. Suraj Kumar and Anr. : 1985CriLJ817 . We are, however, not concerned in a case of this nature where the allegations were clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove her case as has been noticed by the High Court in the said judgment. This Court therein also, while laying down the law that the High Court would have no jurisdiction to examine the correctness of the allegations, opine....
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....the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate w....
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....n offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract. Section 482 of the Code of Criminal Procedure, saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. It is one thing to say that a case has been made out for trial and as such the criminal proceedings should not be quashed but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all. 16. In Hira Lal Hari Lal Bhagwati v. CBI : 2003CriLJ3041 , th....
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....s. : AIR2006SC2780 17. Recently, in Vir Prakash Sharma v. Anil Kumar Agarwal : 2007CriLJ3735 , noticing, inter alia, the aforementioned decisions, this Court held: 13. The ingredients of Section 420 of the Penal Code are as follows: (i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception. 14. What has been alleged in the complaint petition as also the statement of the complainant and his witnesses relate to his subsequent conduct. The date when such statements were allegedly made by the appellant had not been disclosed by the witnesses of the complainant. It is really absurd to opine that any such statement would be made by the appellant before all of them at the same time and that too in his own district. They, thus, appear ....
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....of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts. 19. An offence of cheating may consist of two classes of cases: (1) where the complainant has been induced fraudulently or dishonestly. Such is not the case here; (2) When by reason of such deception, the complainant has not done or omitted to do anything which he would not do or omit to do if he was not deceived or induced by the accused. 20. It is in that sense, a distinction between a mere breach of contract and the offence of cheating should be borne in mind. We, having regard to the facts and circumstances of the case, are of the opinion that no case has been made out and against the appellant so as to hold that he should face the criminal trial. 21. Before parting, however, we may notice a decision of this Court in from State of Madhya Pradesh v. Awadh Kishore Gupta : 2004CriLJ598 whereupon strong reliance has been placed by Mr. Jain. This Court, therein upon referring to Bhajan Lal (supra) opined as under: 11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide a....