2014 (1) TMI 1943

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....laid down by the Supreme Court in a number of judgments, namely, R.P. Kapur v. State of Punjab AIR 1960 SC 866, State of Haryana v. Bhajan Lal 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. 2005 SCC (Cr.) 283. Relying upon the aforesaid judgments, but without culling out the ratio of any of the aforesaid judgments, it has been observed by the High Court that the defence of the accused cannot be considered at this stage. It has further been observed that "the applicants have got right of discharge under Sections 239, 245(2) or 227/228, Code of Criminal Procedure, as the case may through a proper application for the said purpose and the accused persons are free to take all the submissions in the said discharge application before the Trial Court." 2. We have heard Learned Counsel for the parties at length. 3. Ms. Indu Malhotra, learned Senior Counsel appearing for the Appellant, has submitted that the High Court has dismissed the petition for quashing of the proceedings without actually considering the factual position. She points out that the Appellant and the Respondent No. 2-complainant have e....

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....to make the payment of the balance amount. The Respondent No. 2 claimed that due to non payment by the Appellant, the Respondent No. 2 has suffered monetary loss. Consequently, a notice was served through registered post on the Appellant but the Appellant did not pay the balance amount. To take the complaint out of the realm of a purely civil dispute, it is maliciously alleged in the complaint that when the Respondent No. 2 approached the Appellant for payment, the Appellant stated as follows: On 22.03.09, the applicant met the accused in the market of Bazarganj Saraitareen and asked for his balance amount, but accused in the presence of two other persons flatly refused to pay the same and threatened the applicant that if he ever asked for the payment again he will be killed and stated that you don't know me. I have not paid to the high and mighty people, who are you. I had to usurp your money and I had done so. Thereafter she went in a car. 6. In our opinion, the aforesaid averment has been made only to foist criminal liability on the Appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the Appellant. The allegations are absurd....

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....able intention right at the beginning, that is, when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. 9. In the case of S.W. Palanitkar and Ors. v. State of Bihar and Anr. (2002) 1 SCC 241, this Court again observed as follows: - 8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well. 11. One of us (D.P. Mohapatra, J.), speaking for the Bench, in Hridaya Ranjan Prasad Verma v....

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.... dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. 10. Again in G. Sagar Suri and Anr. v. State of UP. and Ors. (2000) 2 SCC 636, this Court observed as follows: 8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. 11. In Bhajan Lal's case (supra), this Court enumerated the categories of cases, by way of illustration, wherein the H....