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2024 (2) TMI 1010
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....st the order dated 08.04.2015 has been dismissed, pending in the Court of the learned S.D.J.M., Hazaribag. 3. The FIR was registered on the written report of Sham Dutt Sharma, who is the Manager of new established company, namely, Bhaskar Steel Pvt. Ltd. of Maa Chhinnamastika Group of Company alleging therein that the petitioner-Debashish Ghoshal, Managing Director of Asansol Infotech and Industrial Consultancy Pvt. Ltd. whose registered office is at G.T. Road, Godavari Apartment, Gopalpur, Asansol came to the informant's office on 10.08.2011 and gave some materials, brochures and C.D. to the informant and said that he has brought some new technology from China and asked the informant to build a new factory, it would give lots of benefit. It was further alleged that the petitioner taking the informant into confidence took a cheque of Rs. 51,00,000/- Lakh and remained absconded for three months. When the informant made enquiry then he came to know that there is no such technology from China and when the informant put the cheque for encashment then the cheque was bounced for insufficient fund and stop payment. 4. Mr. Kaushik Sarkhel, learned counsel for the petitioner submitted....
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....hat, the petitioner preferred Criminal Revision No. 76/2015, which was also dismissed vide order dated 14.10.2015. He further submitted that the allegation with regard to coming to the premises and convinced with regard to issue the cheque of Rs. 51 Lakhs is false. He submitted that the petitioner was taking several works of the said company since 2007 and one of such work was undertaken by the parent company i.e. M/s Ma Chinnamastika Sponge Iron Private Limited, which has issued a work completion certificate vide letter dated 09.02.2010, contained in Annexure-4. By way of referring Annexure-6, he submitted that by letter dated 21.10.2011, the petitioner has stated about manufacturing status of plant and equipment for 500 TPD iron ore sinter and 100 TPD briquetting/pellesting plant as on date and also for clearing the dues of Rs. 7,57,774/- by giving details of work done. He submitted that another letter dated 01.11.2011 was sent and request was made for payment of rest of the amount of Rs. 43,61,840/-. He also submitted that the said cheque was obtained from the petitioner at the gun point by putting him in tremendous fear of life and, thereafter, the complainant/informant filed P....
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....to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. 16. The distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established is that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. In S.W. Palanitkar v. State of Bihar [(2002) 1 SCC 241 : 2002 SCC (Cri) 129], this Court held as under: (SCC p. 2....
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....nd so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Relying on the above judgment, Mr. Sarkhel, learned counsel for the petitioner submitted that the Court is not required to merely act as a post office or mouthpiece of the prosecution and considering the above judgment, the petitioner is fit to be discharged. 6. On the point of discharge, Mr. Sarkhel, learned counsel for the petitioner further relied upon the judgment passed by the Hon'ble Supreme Court in the case of M.E. Shivalingamurthy v. Central Bureau of Investigation, Bengaluru, reported in (2020) 2 SCC 768. Paragraph 17 of the said judgment reads as under: "17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] and discern the following principles: 17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharg....
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.... and record his reasons for so doing." If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced befor....
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....the court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."" Relying on the above judgment, Mr. Sarkhel submitted that strong suspicion is lacking in the case in hand and in vi....
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....no. 2 relied upon the judgment passed by Gauhati High Court in the case of Deba Prasad Dutta v. Madhumita Sharma, reported in 2023 SCC OnLine Gau 842. 10. On the point of entertaining the Revisional Court's order, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of Gujarat v. Dilipsinh Kishorsinh Rao , reported in 2023 SCC OnLine SC 1294. 11. Mr. Roy, learned counsel for opposite party no. 2 further submitted that if the case of the petitioner is being considered on the discharge petition, the same is required to be considered in light of the judgment passed by the Hon'ble Supreme Court in the case of Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra , reported in (2008) 10 SCC 394 and the same was further considered by the Hon'ble Supreme Court in the case of Sandeep Sunil Kumar Loharia v. Sumeet Ganpatrao Bachewar and another in Criminal Appeal No.1051 of 2018 [Arising out of SLP (Crl.) No. 2313 of 2017] and tagged matters. 12. Mr. Roy, learned counsel for opposite party no. 2 further submitted that if the amount is taken on assurance to complete the project and the amount was paid on inducement and the work was not com....
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....st for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable." 16. In the judgment relied by Mr. Sarkhel, learned counsel for the petitioner in the case of Praveen Kumar (supra) in identical situation, the case under Sections 406 and 420 was maintained, however, the case under Section 138 of the Negotiable Instruments Act was set aside and finding of not making out the case under Section 138 of the Negotiable Instruments ....