IN THE COURT OF MS.[ENTITY], METROPOLITAN MAGISTRAGE01, SOUTH, SAKET COURT, NEW DELHI [ENTITY] Complainant Vs. [ENTITY] & Ors Alleged accused persons CC No.6/1/14 PS SJ Enclave ORDER ON SUMMONING Vide this order I shall decide the application u/[SECTION] [ACT] on point of summoning the accused persons. The version of the complainant is as follows: 1.
It is stated by complainant in his complaint that he is a government servant working in CPWD, [ENTITY]. Accused [ENTITY] is known to him for past several years. She introduced him to accused no.3 and 4. It is further stated that accused [ENTITY] asked the complainant for financial help and assured to return the same. The complainant intermittently paid a total amount of Rs.5,30,000/. The complainant after some time asked the accused persons for his money and they agreed to pay him some amount in st 1 week of May. After that time complainant approached the accused persons but they abused him in filthy language and tried to assault him and extended threats to him. The matter was reported to the police but no action [ENTITY] v. [ENTITY] & Ors Page 1 Order on Summoning was taken.
2. Thereafter, the complainant approached the court with the present complaint. The application u/[SECTION] [ACT] seeking registration of FIR against alleged accused persons which was dismissed by the court and thereafter matter was listed for pre summoning complainant's evidence.
3. In his pre summoning complainant evidence, the complainant examined himself as CW1 and reiterated the facts of his. The complainant has alleged in his complaint that accused has cheated him after making conspiracy and prayed to summon them.
4. The cheating i.e. [SECTION] of [ACT] defines the cheating as under : "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 her were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to Cheat".
[ENTITY] v. [ENTITY] & Ors Page 2 Order on Summoning
5. I will first discuss whether the offence of cheating is made out in the present complaint or not. On perusal of the documents and after going through the statement of CW1, I am of the opinion that there are mere breach of contract between the parties.
6. It has been held by the Hon'ble Supreme Court in various judgments that there is a difference between the offence of cheating and breach of contract. It can be inferred from the complaint in question that an agreement was entered into between complainant and accused.
7. Hon'ble Supreme Court has held in Hridaya Ranjan Prasad Verma V. [ENTITY] of Bihar 2000 AIR SC 2341 as follows :
"In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the Intention of the accused at the time to inception which may be judged by his subsequent conduct but this subsequent conduct is not the sole test Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To held a person guilty of cheating [ENTITY] v. [ENTITY] & Ors Page 3 Order on Summoning it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed".
8. It is also held on [PRECEDENT] that when an agreement for sale is executed and earnest money is not paid, the liability arising by the breach of contract is civil in nature and not criminal. Similarly , it has been held in [PRECEDENT] that an offence of cheating would be constituted when accused has fraudulent or dishonest intention at the time of making the promise. The pure and simple breach of contract does not constitute an offence of cheating. As our Hon'ble Supreme Court has held in [PRECEDENT] that falling shot of deceitful intention from very beginning cannot give rise to criminal prosecution for cheating. No ingredients are made out and it seems to be mere breach of contract. Mere failure to make payment is not sufficient to prosecute a person in the offence of the cheating ([PRECEDENT].
9. It is to be seen if a matter, which is essentially of civil nature, has been [ENTITY] v. [ENTITY] & Ors Page 4 Order on Summoning given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal court has to exercise a great deal of caution. For the accused it is a serious matter.
10.It is further discussed by the Hon'ble Supreme Court in S.W.Palanitkar V. [ENTITY] of Bihar that many a time complaints are filed under [SECTION] [ACT] by parties with an oblique motive or for collateral purpose to harass or to wreck vengeance to pressurize the accused to bring them to their own terms or to enforce the obligations arising out the breach of contract touching commercial transactions instead approaching the civil court with a view to realize money at the earliest. It has also to be kept in mind that when parties commit wrongful act constituting criminal offence satisfying necessary ingredients of the offence they can not be allowed to walk away with an impression that no action can be taken against them on criminal side. It is also salutary to note that the judicial process could not be instrument for oppression or needless harassment. Therefore before summoning the accused u/[SECTION] [ACT] one must look for dishonest intention in respect of the contract.
11. In the present case at hand, there was a monetary transaction between the parties and they have even subsequently promised to pay Rs.1.3 lacs to the [ENTITY] v. [ENTITY] & Ors Page 5 Order on Summoning complainant which shows that there was not any presence of dishonest intention to cheat. Non payment may be presumed in such a case to be an inability to pay.
12.In the absence of any intention, mere breach of agreement between complainant and the accused there is no conspiracy to do an illegal act, hence cheating is not made out.
13.Therefore, I am not inclined to summon the accused for any criminal offence mentioned in the complaint. Complaint is dismissed.
14.File be consigned to record room.
Announced in the open court ([ENTITY]) th on 16 January 2015 METROPOLITAN MAGISTRAGE1 SOUTH DISTRICT, SAKET COURT NEW DELHI [ENTITY] v. [ENTITY] & Ors Page 6 Order on Summoning