SATYABRATA BHATTACHARYA Vs. JARNAL SINGH

JUDGEMENT

(1.) JARNAL Singh (opposite party) filed a complaint against Satyabrata Bhattacharya (petitioner) on 28 -6 -1974 alleging that he committed criminal breach of trust so far as the amount of Rs. 3,000/ - is concerned and cheated the complainant to the extent of Rs. 1,10,000/ -. The facts, on the basis of which the allegations are made, may be stated as in the complaint petition itself. We are disposing of this case on the assumption that the entire allegation in the complaint petition is true as also the statement of the complainant made on oath. Allegations are that the accused entered into a contract with the complainant and entrusted him certain construction work fop which specific rates were fixed. In the execution of the contract, trucks were to be hired and the hire charges were to be paid by the accused. The accused was also to pay dues from time to time towards the cost of the work which was being executed by the complainant. The substantial allegations on which the offence is said to be made out may now be extracted in the language given in the complainant itself, 3. That on 25 -54974 the accused was to pay a sum of Rs. 1,10,000/ - (approximately) to the complainant. Besides this two truck owners, who were in immediate need of some funds, demanded payment of their truck hire on 25 -5 -1974 at about 3 p.m. As the accused had no ready cash available, he requested the complainant to entrust him with Rs. 3,000/ - to which the complainant obliged. Out of this amount of Rs. 3,000/ - the accused paid Rs. 1,000/ - to one Lai Singh, the owner of truck bearing ORP No. 4283 and paid the balance amount of Rs. 2,000/ - to one Sukhdev Singh, the owner of the truck bearing No. ORS 4523. The complainant entrust, ed this amount to the accused on the specific condition that the same has to be refunded by the forenoon of the next Bank transaction day, that is, on 27 -5 -1974. He also promised to pay up the entire dues of the complainant by the said date. 4. That the accused with the mala fide intent to defraud the complainant left Berhampur on 26 -5 -1974 night and did not return again, nor made any arrangement either to repay the amount of Rs. 3,000/ - taken on the specific undertaking, nor paid up the dues of the complainant amounting to Rs. 1,10,000. 5. Thus the complainant went to Calcutta to the office of the accused but he made himself scarce and concealed his presence. Thus, the mala fide intent of the accused to cheat the complainant is manifestly clear. 6. That the accused has committed breach of the trust as far as the amount of Rs. 3,000/ - is concerned and cheated the complainant to the extent of Rs. 1,10,000/ -. That it is expedient in the interest of justice that the accused be punished in accordance with law. The complainant was examined on oath on the very same day. Therein he did not make any statement with regard to cheating of Rs. 1,10,000/ - but made a statement that the accused came and took Rs. 3,000/ - from him on the understanding that this amount with arrears due would be paid on 27 -5 -1974 on the reopening of the bank. He paid Rupees 2,000 to Lai Singh and Rs. 1,000 to Sukadev Singh on 26 -5 -1974, went away without payment of money to Calcutta and the complainant did not find him in Calcutta as he concealed his presence. On the basis of the complaint petition and the statement made on oath, cognizance was taken on 28 -6 -1974. The impugned order of the learned magistrate runs thus: - Examined the complainant on S. A. Took down his statement. Perused it. I am satisfied that a prima facie case under Section 406, I. P.C. is made out. Congnizance taken of the offence .... The criminal revision has been filed to quash the impugned order dated 28 -6 -1974.

(2.) MR . Palit for the petitioner urged that even if the entire complaint petition and the statement on oath are accepted as correct, no offence is made out under Section 406, I. P.C. and the impugned order is liable to be quashed as having been exercised without jurisdiction, Mr. B. K. Misra appearing for the opposite party concedes that no offence under Section 406, Indian Penal Code has been made out, but he urges that an offence under Section 420, Indian Penal Code is made out and it is open to the magistrate at a subsequent stage to charge the petitioner under Section 420, I. P.C.

(3.) SECTION 415, I. P.C. runs thus: - Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces, the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage of harm to that person in body, mind, reputation or property, is said to 'cheat'. There is no allegation in the complaint petition or the statement on oath that the petitioner deceived the opposite party, nor there is any allegation that he fraudulently or dishonestly induced the opposite party to part with the money. No offence under Section 420, I. P.C. is therefore made out.