ANAND PRAKASH AGARWAL Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) A complaint under sections 406, 418, 420, 504 and 506, I.P.C. was filed by the complainant at Police Station Kashipur, District Udham Singh Nagar against the applicant alleging that the applicant is a builder and had come to Kashipur to engage the complainant in constructing a septic tank, sewer lines etc. in a colony which was being developed by the applicant in Meerut. It is alleged that on the basis of an oral agreement, the complainant undertook the work. It was agreed that payment would be made from time to time on the basis of the work done by the complainant. It was alleged that the complainant invested his money in laying down the pipe lines, constructing the septic tank, etc, and as on 31st March, 2003, a sum of Rs.7,22,396/- became due and payable by the applicant. It was alleged that the applicant did not pay the bills nor had any intention to pay the bills and, accordingly, the applicant had an intention to deceive and defraud the complainant. It was alleged that a statement of account dated 9th September, 2003 was sent which was refused by the applicant and that a sum of Rs.80,000/- was paid by two cheques which were dishonoured and only Rs.50,000/- was paid and the balance amount has been usurped by the applicant for vested reasons. The complaint was accordingly filed alleging that the applicant had cheated and defrauded the complainant and accordingly, the applicant be punished in accordance with law. It transpires that the complainant was examined under section 200, Cr.P.C. and some of his witnesses were examined under section 202, Cr.P.C. The Trial Court took cognizance and issued a summoning order dated 20.11.2003. The applicant, being aggrieved by the issuance of the summoning order, has filed the present application under section 482, Cr.P.C. for the quashing of the summoning order as well as the criminal proceedings initiated pursuant to the complaint. On identical facts, another complaint under section 138 of the Negotiable Instruments Act was filed alleging that the cheque of Rs.30,000/- was dishonoured and that the applicant was liable for punishment under the provision of section 138 of the N.I. Act. The Court took cognizance of the offence by an order dated 8th January, 2004. The applicant, being aggrieved, has filed an application under section 482 Cr.P.C. for the quashing of the order dated 8th January, 2004 as well as the entire proceedings initiated under section 138 of the N.I. Act.

(2.) HEARD Shri S.K. Jain, the learned Counsel for the applicant, Shri G.C. Lakhchaura, the learned Counsel for the respondent No. 2 and Shri T.C. Agarwal, the learned Addl. G.A. for the State.

(3.) AN offence of cheating cannot be said to have been made out unless the following ingredients are satisfied :