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M/S Hanuman Prasad & Another v. State Of U.P. & Another - APPLICATION U/s 482 No. 16624 of 2005 [2005] RD-AH 8006 (22 December 2005)


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Court No. 49.

Criminal Misc. Application NO.  16624 of 2005

M/s Hanuman Prasad Girish Chandra and another Vs. State of U.P. And another.

Hon'ble M. K. Mittal, J.

Heard Sri Abhishek Tripathi, learned counsel for the applicants, Sri R. K. Mishra, learned counsel for the opposite party no. 2, learned A.G.A. and perused the record.

Application under Section 482 Cr.P.C. has been filed to set aside the Criminal Complaint case No.  291 of 2002 pending in the Court of A.C.M.M.-II, Kanpur Nagar.

Brief facts are that the opposite party no. 2 filed a complaint against the applicants alleging that there was business transaction between the parties. On 24.4.1999 at about 11.30 a.m. accused no. 2 asked the complainant for supply and entrustment of the clothes of different varieties as per his need, requirement and choice in the presence of the witnesses and induced the complainant to have trust on him and assured that he would pay the amount under the subject deal without any delay or default and also requested the complainant that he wanted to take the clothes in 5-6 instalments in the span of two months and would finally clear up and pay the total amount in the last week of June 1999 and expressed his inability that due to some personal problem he was not capable to pay or clear up the amount till third week of June 1999. The complainant having been induced by the clear and specific assurances as well as the words of honour given by accused no. 2 and also keeping in mind to keep and maintain cordial relation, entrusted him the clothes on the vary same day as well as on subsequent occasions when the accused no. 2 visited the complainant.

Bills were issued and the clothes were given to the accused no. 2. The accused also used to request him to book the ready bales of clothes through M/s New Behraich Express Transport company and the complainant used to book the consignment as desired. Details of the transport receipts have been mentioned in the complaint. On 23.6.1999 accused no. 2 again visited the premises of the complainant and assured to pay the total amount in the last week of June 1999 more particularly between 25th to 30th June. The accused  did not pay the amount inspite of the demands. According to the complainant the accused had a well matured, malafide, pre-existing, criminal and dishonest intention in his mind from the vary inception with the sole intention and ulterior motive to cheat the complainant by deliberately causing wrongfull loss to him and to gain wrongfully in as much as that accused no. 2 with malice and clear dishonest mind induced him firstly by giving assurances and words of honour so as to win his confidence and got the supply and entrustment of the cloth and consequently trapped him under his net and deceived him by playing fraud and successfully cheated the complainant to the tune of Rs. 89,829/- so far as it relates to the transaction of the case in hand for his deliberate wrongful gain. These allegation have been made in the complaint.

The complainant examined himself and his witnesses under Section200/202 Cr.P.C. and thereafter learned Magistrate finding a prima facie case directed to summon the accused under Section 420 IPC vide order dated 11.4.2002. Against that order the accused filed criminal revision which was allowed by order dated 31.5.2003 and the case was remanded by Addl. Sessions Judge, Kanpur Nagar. Accused applicants also filed objection for their discharge but the learned Magistrate vide order dated 7.1.2005 rejected the same and directed to summon them.

Learned counsel for the applicants has contended that the dispute between the parties is of civil nature and that the complainant had to show that the accused had intention to cheat at the inception of transaction. He has further contended that  there were transactions between the parties for the last several years and the applicants had paid all the money to the complainant and it appears that there was some error in the account. The complainant had also given a notice but in that notice more amount was demanded whereas in the complaint less amount has been mentioned. But the contention of the learned counsel for the accused applicant is not tenable. The criminal proceedings cannot be barred on the ground that the matter is also of civil nature or that it is a case of accounting.

The contention of the learned counsel for the accused applicants is that the complainant has to show that the accused had intention to deceive at the beginning of the transaction. In support of his contention he has placed reliance on the case of  Ajay Mitra Vs. State of M.P. And others 2003 (3) SCC 11, where it has been held that guilty intention is an essential ingredient of the offence of cheating. Learned counsel for the accused applicants has also placed reliance on the cases of  State of Kerala Vs. A. Pareed Pillai & another AIR 1973 SC 326; Satyabrata Bhattacharya Vs. Jarnal Singh  1976 Crl. L. J. 446; Alpic Finance Ltd Vs. P. Sadasivan and anothers JT 2001 (2) SC 588;  S. W. Palanitkar and others Vs. State of Bihar and another JT 2001 (9) SC 151; Hari Prasad Chamaria Vs. Bishun Kumar Surekha and others AIR 1974 SC 301 and Vasudeo Kulkarni Vs. Suryakant Bhatt and others 1977 (14) ACC 323. There is no dispute about the legal position as laid down in these cases. But the question is as to at what stage it has to be seen. In the case of Inspector of Police, C.B.I. Vs. B. Rajagopal and others 2002 (44) ACC 758, Hon'ble Apex Court has held that the plea that there was neither any intention to cheat nor there was any act of forgery, these matters are for the trial Court to decide when the final conclusion is made. Therefore the accused applicants can take the pleas as raised by them in the Trial Court at appropriate stage. The allegations as made in the complaint prima facie make out a case against the applicants. There is no ground to quash the criminal proceedings at the threshold and therefore the application is devoid of merits and is liable to be dismissed.

Application filed under Section 482 Cr.P.C. is hereby dismissed.




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