BALBINDER SINGH Vs. VIMAL KUMAR JAIN

JUDGEMENT

(1.) This application has been filed under Section 482 of the Criminal Procedure Code, 1973 for quashing the criminal proceedings in Case No. C.R. 1262/93 pending in the Court of the Magistrate, First Class, Diphu, as well as the order dated 4.10.93 passed in the said case.

(2.) The facts briefly are that the opposite party filed a complaint dated 28.9.93 stating therein that his wife Ms. Hira Devi was the owner of a truck bearing No. AS-09-0102 and that he was looking after the said truck on behalf of his wife. He has further alleged in the said complaint that on 27.2.93 he entered into an agreement with the petitioner for sale of the said truck and as per the said agreement the petitioner was to pay a sum of Rs. 75,000/- towards value of the said truck out of which the petitioner has paid a sum of Rs. 10,000/- as first kist and out of the remaining amount 50% was to be paid as second kist on 30.1.93 and the balance 50% was to be paid as final kist on or before 10.4.93 and he banded over the possession of the truck to the petitioner in good faith, but after taking such possession, the petitioner was neither paying the kist money nor returning the vehicle and when the opposite party met the petitioner on 15.9.93, the petitioner refused to give him the truck and instead threatened him with dire consequences. The Magistrate, First Class, Diphu recorded the statement of the opposite party in support of the said complaint and passed orders on 4.10.93 in the aforesaid Case No. C.R. 1262/93 that he found materials under Sections 406 and 420 IPC, to proceed with the case. Aggrieved by the aforesaid order dated 4.10.93 of the Magistrate, First Class, Diphu, the petitioner has filed this, application for quashing the said order as well as the criminal proceedings.

(3.) At the hearing, Mr. O.P. Bhati, learned counsel for the petitioner, submitted that the facts stated in the complaint of the opposite party do not make out offences of criminal breach of trust and cheating under Sections 406 and 420 IPC in much as they do not disclose any dishonest intention on the part of the petitioner and accordingly the initiation of the criminal proceedings against the petitioner by the Magistrate by the impugned order dated 4.10.93 was bad and is liable to be quashed and the remedy, if any, of the opposite party against the petitioner is a civil suit. In support of his submissions, Mr. Bhati relied on the judgment of the Supreme Court in the case of State of Kerala -Vs- A.P. Piliai, AIR 1973 SC 326, in which it has been held that to hold a person guilty of an offence of cheating, it has to be shown that his intention was dishonest: at the time of making the promise and such dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise made under an agreement. It has further been held in the aforesaid case by tike Supreme Court that such breach of promise may give rise only to civil liability but was not sufficient to fastern criminal liability on the accused. Mr. Bhati also cited the decision of the Apex Court in the case of Delhi Municipality -Vs- Ram Kishan, AIR 1983 SC 67, wherein it has been held that proceedings against an accused in the initial stage can be quashed if on the face of the complaint or the papers accompanying the same no offence is constituted.