THE HON'BLE SRI JUSTICE N. RAVISHANKAR CRIMINAL PETITION Nos.6966, 6967, 6968 & 6969 of 2008 COMMON ORDER: Parties to these four criminal petitions are same and the points involved are similar and therefore they are being disposed of by this common order. 2. Criminal Petition Nos.6966, 6967, 6968 & 6969 of 2008 are ﬁled for quashing four diﬀerent calendar cases viz., C.C.No.2576 of 2007, C.C.No.2025 of 2007, C.C.No.2027 of 2007 and C.C.No.2026 of 2007, respectively, on the ﬁle of the I Additional Chief Metropolitan Magistrate, Nampally, Hyderabad (trial court). As usual the accused who is common in all the four cases ﬁled these petitions. In each of these cases the oﬀences alleged are those punishable under Sections 406 and 420 of IPC. Sri Shyam Sunder Agarwal who is the ﬁrst respondent in each of these criminal petitions has ﬁled four diﬀerent complaints against the petitioner-accused before the trial court and they were referred to concerned police station for investigation and report. After completion of investigation the police ﬁled four diﬀerent charge sheets which came to be registered as the aforesaid calendar cases against the petitioner-accused. 3. The point is whether there are grounds to quash all the four cases. 4. In all these four cases the version of the complainant is that the petitioner-accused initially deposited monies with him for purchase of edible oil and soon thereafter he (accused) purchased edible oil on credit basis by promising him to pay the amounts and ultimately cheated him by issuing cheques which were dishonoured. In all the cases allegations are made to the eﬀect that from the beginning the petitioner-accused had the intention to cheat the complainant so far as these transactions which are the subject matter of these cases. The concerned police as already stated supra have filed charge sheets pleading that the petitioner-accused had an intention to cheat the complainant and committed the offences. 5. Sri P.Amarender Reddy the learned counsel for the accused points out that the complainant should have resorted to the remedy of prosecutions under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of cheques and he cannot prosecute the petitioner-accused for the oﬀences of cheating and criminal breach of trust. It is now well settled that even where a cheque is dishonoured it is always open for the payee or the holder in due course to prosecute the drawer for the oﬀence of cheating punishable under Section 420 of IPC by pleading the ingredients which are necessary to prove that oﬀence. The complainant in each case has chosen to prosecute the accused for the oﬀence punishable under Section 420 of IPC in addition to the offence under Section 406 IPC. 6. Sri Amarender Reddy pointed out that the necessary ingredients of the oﬀences punishable under Sections 420 and 406 of IPC are totally absent and therefore all the cases should be quashed. His contention is that there were several dealings between the complainant and the petitioner-accused even prior to these transactions and therefore any failure of the petitioner-accused to repay the amounts would raise only a civil dispute and cannot lead to a criminal prosecution for cheating. He also relied upon a decision of the Supreme Court given in Vir Prakash Sharma v. Anil Kumar Agarwal [1]. The principle laid down in this case is that where allegations contained in a criminal case even if believed to be true do not disclose an oﬀence then the case can be quashed. There is no dispute about this proposition. 7. It may be noted that so far as the oﬀence of cheating punishable under Section 420 of IPC is concerned there are allegations in each complaint and the charge sheet ﬁled by the police showing that the petitioner-accused has got an intention to cheat the complainant i.e. he had an intention not to pay the amount for the goods received even from the beginning. Thus it cannot be said that this is a case where the necessary foundation for the oﬀence of cheating is not made. Of-course whether the petitioner-accused is innocent or not has to be decided at the time of trial or in any application filed by him for discharge. 8. Then turning to the offence punishable under Section 406 of IPC which relates to criminal breach of trust, the grievance of the petitioner-accused is that the allegations in the charge sheet do not disclose that oﬀence at all. It may be noted that to attract the oﬀence punishable under Section 406 IPC it is necessary to show that the complainant has entrusted some goods or valuable to the accused reposing trust in him and that trust has been misused by the petitioner-accused. In the present case the complainant has sold goods to the petitioner-accused and the grievance of the complainant is that the petitioner- accused did not pay the amount for them and instead he issued cheques which were dishonoured. In other words, the complainant even as per the allegations made by him did not entrust any goods to the petitioner-accused without parting with their ownership in his favour. Thus it can be said that the ingredients relating to the oﬀence of criminal breach of trust are absent. In view of the same all the four cases insofar as they relate to the oﬀence of criminal breach of trust cannot be allowed to be prosecuted. 9. Accordingly all the four cases insofar as they relate to the oﬀence punishable under Section 406 of IPC are held to be invalid and quashed, but so far as the oﬀence punishable under Section 420 of IPC is concerned, for the reasons aforesaid, it follows that the cognizance for that offence cannot be quashed. 10. The point is accordingly decided and these criminal petitions are partly allowed as indicated above. It shall be open for the petitioner-accused to raise all his objections to prosecute him for the oﬀence under Section 420 IPC before the trial court. Equally it shall also be open for the trial court to proceed against the petitioner-accused for other oﬀences in case any further material is placed before it either in the course of trial or otherwise as the power of the trial court in that behalf cannot be fettered by this court. ______________________ N. RAVISHANKAR, J 30th November 2011 CVRK [1] (2007) 7 SCC 373