G LAXMINARAYAN Vs. CHITIBAINA YERRAIAH

JUDGEMENT

(1.) The petitioner and the opposite party No.2 figure as the accused persons in a case of cheating under S. 420 of the I.P.C. (for short, the 'Code') instituted by the opposite party No.1 as the complainant alleging that the petitioner, having placed an order for supply of coal with the opposite party No.1 for Rs. 44,043.50 paise and having paid Rs.35,000/- by a cheque and kept the balance amount of Rs. 9,043.50 paise to be paid, placed another order for Rs. 33,097.60 paise and drew a cheque for Rs.42,141.10 paise bearing No.034058 dt. Jan. 10, 1984 through his clerk, the opposite party No.2, which was returned by the Bank as the petitioner had no money to his credit and in spite of several correspondences, the petitioner failed to clear up the arrears. On the basis of these averments in the petition of complaint and the statement of the petitioner recorded under S. 200 of the Cr. P.C. cognizance has been taken of an offence punishable under S. 420 of the Code against the petitioner and the opposite party No.2 by the learned Additional Chief Judicial Magistrate, Cuttack and the petitioner has sought exercise of the inherent jurisdiction of this Court under S. 482 of the Cr. P. C. to quash the criminal proceeding as prima facie, no case under S. 420 of the Code has been made out. While exercising jurisdiction under S. 482 of the Cr.P.C. it may be kept in mind that interference is called for in rare and exceptional cases in the interests of justice and when the facts stated in the petition of complaint taken in their entirety, if accepted to be true, do not make out any case against the persons proceeded against.

(2.) The learned counsel for the petitioner has submitted that in the absence of any allegation that the petitioner had no account in the Bank or that he had made any representation that he had sufficient funds in the Bank when the cheque was drawn and handed over, a case of cheating could not have been instituted in law as the ingredients of an offence of cheating were absent. The learned counsel for the opposite party No.1 has submitted that as the cheque given by the petitioner had not been honoured as he had no money in the Bank, prima facie, there is a case against the petitioner and the opposite party No.2 and no interference is called for in exercise of the inherent jurisdiction of this Court. No notice has been issued to the opposite party No. 2 who is one of the accused persons as per the order dt. Oct. 22 1984, passed by this Court, as it was not necessary to issue a notice.

(3.) It is not a case in which it had been averred in the petition of complaint or stated by the opposite party No.1 that the petitioner had no account in the Bank. It is not the case of the opposite party No. 1 that at the time of drawing the cheque, the petitioner had made a representation to the opposite party No.1 that he had sufficient money in the Bank to cover the cheque. The question for consideration would be as to whether the facts alleged would amount to a civil wrong or would constitute an offence of cheating.