GOVIND CHANDRA GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Rajesh Kumar, learned counsel for opposite party No. 2 and learned A.G.A. for the State.

(2.) The submission of learned counsel for the applicant is that no offence punishable under Section 420 IPC is made out inasmuch as there is no allegation in the complaint that there was any dishonest intention from the very beginning, which is an essential ingredient for an offence punishable under Section 420 IPC. It has been submitted that even assuming that money required to be paid under the agreement was not paid to the contractor (complainant), it cannot be said that there was dishonest intention on the part of the accused from the very beginning that is since the time of entering into works contract. It has thus been submitted that no offence punishable under Section 420 IPC is made out. It has further been submitted that in absence of any material showing misappropriation of fund, it cannot be said that the applicant committed any offence, particularly when the allegation is not that the applicant made any false promise at the time of entering into the alleged contract.

(3.) Per contra, learned counsel for the complainant submitted that from the complaint allegations it is clear that the complainant was entitled to a sum of Rs. 1,19,828/- from the department but despite all the formalities having been completed, the amount was not paid, therefore, there existed dishonest intention on the part of the applicant. Having considered the submissions of learned counsel for the parties and on perusal of record, this Court is of the view that from a perusal of the complaint as also the statement recorded in support thereof, it is not established, even prima facie, that there existed dishonest intention on the part of the accused from the very beginning that is from the stage when the work contract was entered into between the department and the complainant. Mere failure to fulfill a promise cannot be a ground to draw proceedings for prosecution under Section 420 I.P.C. The essential ingredient for an offence punishable under Section 420 IPC is dishonest misrepresentation on the part of the accused at the time of making promise. In the case of V.P. Srivastava v. Indian Explosives Ltd., 2010 10 SCC 361, the Apex Court held that mere failure to perform the promise, by itself is not enough to hold a person guilty of cheating. It is necessary to show that at the time of making promise he has fraudulent or dishonest intention to deceive or to induce person so deceived to do something which he would otherwise not do. It was observed that such a culpable intention right at the time of entering into an agreement cannot be presumed merely from his failure to keep the promise subsequently. In the instant case it is not established, even prima facie, that there existed dishonest intention on the part of the accused when the contract was entered into between the department and the complainant. Accordingly, the essential ingredient for commission of an offence punishable under Section 420 IPC is not disclosed.