JAGADISH PRASAD PADHY Vs. K NAGESWAR SENAPATHY

JUDGEMENT

(1.) THE Petitioners are the accused persons in I.C.C. No. 11 of 1993 pending before the Learned J.M.F.C, Aska. They have filed this application under Section 482, Cr.P.C. challenging the order dated 2.3.2002 passed by the Learned Additional Sessions Judge, Bhanjanagar -Aska in Criminal Revision No. 30 of 2002 dismissing the same and confirming the order of the Learned J.M.F.C., Aska dated 10.2.1995 framing charge for commission of offences under Sections 420 and 34 of the Indian Penal Code.

(2.) THE case of the Complainant -Opposite party No. 1 is that the Petitioner and two others are the Officers of the Public Welfare Department. An agreement was executed between the Complainant and the Petitioner for construction of a fair -weather road. In terms of the agreement, it is alleged that the Complainant executed the work. It is further alleged that on 26.12.1 990 the Petitioner called the Complainant and sought for help stating that unless the Complainant arranged Rs. 25,000/ - to purchase wooden planks, the work cannot be completed in time and they also promised to pay back the money. Accordingly, the Complainant paid a sum of Rs. 25,000/ - to the Petitioner. The grievance of the Complainant is that though promise was made for refund of the money, the same has not been paid back and those Officers have been transferred to different places and one of the Officers who was Junior Engineer at the relevant time refused to return the money. On the basis of such allegation, cognizance was taken and thereafter charge has also been framed in the impugned order passed by the Learned Magistrate for commission of offences under Sections 420 and 34 of the Indian Penal Code. The said order framing charge was challenged in Revision and the Revision having been dismissed, the present application under Section 482, Cr.P.C. has been filed.

(3.) SO far as allegations made in the complaint are concerned, it is evident that the Complainant had entered into an agreement with the Petitioner for execution of certain works. In course of executing the work, it is alleged that the Petitioner asked for payment of Rs. 25,000/ - to complete the same in time and promised to return the money. At a later stage, the money was not returned and the Petitioner and two others Officers were transferred to different places. It is also alleged that one of the Officers who was working as a Junior Engineer at the relevant time refused to refund the money. Under these circumstances, the Court now called upon to see as to whether the ingredients for commission of offence under Section 420 of the Indian Penal Code are available or not to frame charge. The Apex Court in the case of Hiralal Hari Lal Bhagwati v. C.B.I., New Delhi reported in (2003) 25 OCR (SC) 770 held that applicability of offence under Section 420 of the Indian Penal Code depends upon existence of fraudulent or dishonest intention at the time of making the promise or representation is necessary. In the aforesaid case the C.B.I. initiated a criminal proceeding alleging commission of offence under Section 120 -B read with Section 420 of the Indian Penal Code against the accused persons on the ground that the accused persons in conspiracy with the Director, Gujarat Cancer and Research Institute as well as the Secretary of Gujarat Cancer Society and two others have cheated the Government of India in terms of evasion of customs duty and by concealment of facts obtained customs duty exemption certificate in respect of MRI and some other lithotripsy machines. The matter came up before the High Court in an application under Section 482 Cr.P.C. and the application having been rejected, the matter was carried to the Apex Court. The Court interpreting Section 420 of the Penal Code observed that existence of fraudulent dishonest intention at the time of making the promise or representation is necessary to initiate the criminal proceeding. In the case of Ajay Mitra v. State of M.P. and Ors. reported in (2003) 25 OCR (SC) 226 the Apex Court held that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the' inducement was offered. If the accused at the time he promised to pay cash against delivery had an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. This case also arose out of an order passed by the Madhya Pradesh High Court rejecting an application under Section 482 Cr.P.C. challenging initiation of a criminal proceeding. In the case of Vijaya Rao v. State of Rajasthan and Anr. reported in (2006)33 OCR (SC) 230 the Apex Court took similar view that allowing criminal proceedings against Appellant would result in abuse of process of Court and accordingly quashed the same.