PASHUPATI NATH Vs. RAMJI

JUDGEMENT

(1.) THE applicant has come forward with the prayer that proceedings in Criminal Case No. 1130 of 1982 pending in the Criminal Court II Basti may be quashed. That case is under Section 420 IPC. It was initiated on a private complaint by opposite party no. 1. THE case is at the stage of evidence, rather in paragraph 16 of the counter affidavit it has been stated that the complainant has already led the entire evidence, meaning thereby that whatever evidence he was to lead, and only a former witness of the Bank remains to be examined. THE complaint averments are that on the assurance given by the applicant the complainant despatched the goods of substantial value by railway transport sending R. R. and Hundi to the Bank but the applicant instead of honouring Hundi and taking the R. R. from the Bank after payment of the amount involved, furnished an indemnity bond to the Railway and took delivery on that indemnity bond. It is further alleged in the complaint that thereafter the applicant was again contacted. THE applicant requested that he may then be given the R. R. and the applicant is making payment by cheque and the applicant gave three cheques which were again dishonoured. It is further stated that thereafter the applicant on being pressed made certain payment not leaving the balance amount. It is stated that the applicant had from the very inception the intention to cheat. Learned counsel for the applicant urged, as stated in the petition also, that there was no such intention nor is there any criminal liability, and the liability, if any, is of a purely civil nature. Reliance was placed in support of the arguments upon the case of Hari Prasad Chamaria v. Bishun Kumar, AIR 1974 SC 301 in which the complainant in full faith gave a large amount to the respondents for starting business but respondent started business in their own name, and it was held that it is a civil liability and there was nothing in the complaint to show that at the time the complainant parted with the money there was any dishonest or fraudulent intention. Certain lacunas and omissions in the complaint were referred to and the Supreme Court in that case came to the conclusion that dishonest intention at the inception is lacking and there is no allegation also in the complaint disclosing such intention at the inception. THE principle laid down in this ruling is that the intention to cheat and deceit and the dishonest intention should exist from the inception. Reliance was also placed upon the case of Mahadeo v. State of West Bengal, AIR 1954 SC 724 but in that case actually the conviction under Section 420 IPC was maintained. What the Supreme Court laid down in that case is that it is to be examined whether at the time the complainant was made to part with the goods he had no intention to pay but merely said so in order to induce the complainant to part with the goods then in that case cheating would be made out. So stress is on the intention at the inception when the goods are parted with. Reliance is further placed on Ram Niwas v. Zafar Abbas, 1978 ACrR 17. THE facts of that case were peculiar. Actually evidence was led and the materials did not go to make out a case and then a prayer was made after all the witnesses had been examined for sending a receipt to any hand writing expert and the Magistrate had allowed the prayer. In such context the court came to the conclusion that the proceedings are to be quashed.

(2.) INTENTION is to be inferred from the facts and circumstances and facts and circumstances of each case differ. While considering the view that I am going to take I will not express any opinion in details which may prejudice any party the trial. It may be sufficient to refer to the complaint allegation that complaint's allegations are that the complainant was made to part with the goods on an assurance that the Hundi would be honoured and then delivery would be taken on the strength of original R. R. Actually the present applicant instead of taking R. R. from the Bank, honouring Hundi, just took delivery on indemnity bond from the railway. It is argued that this circumstance in itself would go to show that from the very inception the intention was not to pay but to make the applicant part with the goods with no intention to pay for them and then take delivery. While I may refrain from expressing any opinion as such that important circumstance is involved here and may be relevant when the evidence is examined, concerning the intention at the inception. I may hasten to add that I am not expressing any opinion and the trial court will be free and at liberty to take its view also considering one other circumstance favourable to the applicant namely that he later paid a part of that amount. The counsel for the opposite party has cited the case of Amar Chand v. Sahnti Bose, AIR 1973 SC 799 in which High Court was moved at the time when the trial was almost coming to a close and the Supreme Court held that the proper course at that stage was to allow the proceeding in the trial court to go on and to come to its logical conclusion one way or the other and declined to interfere with the proceeding in exercise of its inherent powers. The learned counsel for the applicant has on the other hand relied upon the case of State of Karnataka v. L, Muniswamy, AlR 1977 SC 1489. In that pronouncement it has been laid down that it is the duty of the court to prevent the abuse of the process of law and the powers under Section 482 CrPC are very wide and can be exercised in suitable cases. It was further observed that it is open to the court under Section 482 CrPC to assess evidence and come to any conclusion whether the reasons given by the trial court for framing charges are correct or otherwise etc. It is noteworthy that in that case the proceedings were at charge stage. The Sessions Judge had discharged some accused and had adjourned the case for framing specific charge. At that very stage matter came to the Court under Section 482 CrPC and ultimately went up to the Supreme Court. The well settled law is that the primary duty of any court is to endeavour to reconcile two pronouncements. I may observe that in the case of State of Karnataka (Supra) the stage was that of charge alone and the Sessions Judge had already discharged some persons and in the light of these facts and context the observations in that case are made. In the case of Amar Chand (supra) the evidence had almost concluded and the stage was of almost conclusion of the trial and the Supreme Court held that powers under Section 482 CrPC will not be exercised. This ruling on the facts of this case will apply. I may also observe that similar view has been taken in the case of If ran v. State in Criminal Case No. 1848 of 1978 by this Court in its judgment dated 15-1-1981. True that in that case the case of State of Karnataka (supra) was not cited nor distinguished, but the Supreme Court case of Amar Chand (supra) was cited and was followed. I have, however, considered the case of State of Karnataka also (supra) and distinguished it. It was urged in the petition that there have been a number of dates and case is lingering on. In the counter-affidavit it has been stated that many of the adjournments were due to accused person himself. However, I may observe that the trial court should expedite the disposal of the case at the earliest. At the same time I also hold that it is not a fit case for exercising my inherent powers in favour of the applicant as to disturb the proceedings in the trial court.