RAMJI LAKHAMSI BUDHADEV Vs. HARSHADRAI NANDALAL BHUTA

JUDGEMENT

(1.) The petitioner filed a complaint in the Court of the Presidency Magistrate 19th Court, Bombay charging accused Nos. 1 and 2 with having committed and offence under S. 420 I.P.C and accused No. 3 with having abetted the commissioner of that offence. It was alleged in the complaint to that the third accused persuaded the petitioner to enter into a contract shipping 2000 Tons of oil cakes on board s.s Dmitri Donskoy with the Atlas Engineering Company on a representation that accused Nos 1 and 2 werepartners of that representation and it turned out, after the contract was broken and the consignment was not booked that acused Nos. 1 and 2 confirmed the representation and it turned out, after the constract was broken and the consignment was not partners of the Atlas Engineering Company and that one Babubhai Rikahchand and Lallbhai Babulal Shah were in truth the partner of that firm petitioners would have enterd into the shipping contract. Holding that the no prima facie case was made out for issueing process against the accused. the Trial Magistratedischarged the accused and dismissed the complaint. In the view of the learned Magistrate the possibility of the petitioner knowing that the properitors of the Atlas Engineering Company were not the accused could not on the evidence be excluded and that in any even it could not be said that but for the representation made by accused No. 3 that accused No. 1 and 2 were the partners of the Atlas Engineering Company, the petitioner may not have entered into the said contract. The correctness of the order of discharge is challenged in this revision application.

(2.) This is one of those casesin which civil dispute is sought to be litigated n a criminal court under the guise of a charge of cheating The substance of the complaint is that the petitioner entered into a shipping contract with the Atlas Engineering Company, that that contract was broken and that the persons responsible for committing breach of the contract were accused Nos. 1 to 3 who though they have no interest in the atlas Engineering Complnay held accused Nos 1 and 2 out as partners of that firm. Prima facie such aplea will sustain in a vicil court a claim for damage for breach of contract and the petitioner may seek to hold accused Nos. 1 and 2 liable for holding themselves out as partners of the Atlas Engineering Company. An action may also lie in damages against the third accused for the part alleged to have been played by him. But we fail to appreciate how, on the allegations made offence can be made out against the three accused or any of them.

(3.) Section 415 I.P.C defines cheating That Section is susbstantially in two parts. Deception by fraudulently or dishonestly inducing aperson to deliver any property to any person or to consent that any person shall retain property is cheating under the first part of the definition. Deception of any person by intentionally inducing that person to do or omit to do anything which he would not be or omit if he were no so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property is cheating, under the second part Under the first part one of te important ingredients of cheating is that the act important ingredients of cheating is that the act of the accused must be done fraudulentlyor dishonesty and the act must result in inducin the person deceived to deliver property or consent to retention of property. for the application of the second part two conditions must be fulfilled (I) a must be intentionally deceived to do or omit to do something which he would not other wise do an (ii) such act or omission causes or his likely to cause damage or harm to the person deceived in body, mind reputationor property. Section 420, I.P.C is anaggravated from of cheating. If a person cheats another and thereby dishonesty induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security and anything which is signed or sealed and which is capable of being converted into a valuable security, he is liable to be punished under this section. Evidently, in this case on the alegations made there is no delivery or property to any person or the making alternation or destruction of the wholy or any part of a valuable security or anything which is signed or sealed. Nor can it be said that the delivery, if any, is by dishonest inducement. The accused are alleged merely to have induced the petitioner to enter into a contaract of consignment of oil cake. An act is done dishonestly if it is done with the intention of causing wrongful gain to one person or wrongfulless to another person (see section 24 I.P.C. and it is not the case of the petitioner that in inducing the peitioner to enter into a contract, there was any intention to cause wrongful gain to the accused or to cause wrongful loss to the petitioner.