Criminal Misc. No. 49988-M of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Misc. No. 49988-M of 2007 Date of Decision: 23.3.2010 Anil Kumar …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Baldev Singh, Senior Advocate with Mr. Sudhir Sharma, Advocate for the petitioner. Mr. Manish Deswal, Deputy Advocate General, Haryana, for the respondent. Mr. Sunil K. Vashisht, Advocate for the complainant. Mr. Vinay Kumar Garg, Advocate for Delhi Public School, Faridabad. Kanwaljit Singh Ahluwalia, J. (Oral) The present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No. 438 dated 11.12.2006 registered at Police Station Old Faridabad, under Sections 420, 406 and 120-B IPC and a report under Section 173 Cr.P.C. (Annexure P2) submitted in the Court of Additional Chief Judicial Magistrate, Faridabad. Normally, this Court would not have entertained such petitions wherein a report under Section 173 Cr.P.C. (challan) has been submitted and would have left to the trial Court to hear the parties at the Criminal Misc. No. 49988-M of 2007 2 time of framing of a charge and determine as to whether any offence has been made out or not. But in the present case, this Court is of the view that from the bare perusal of the FIR and a report under Section 173 Cr.P.C. (challan), no criminal offence has been made out. Therefore, in this context, the contents of FIR and a report under Section 173 Cr.P.C. (challan) are to be noticed. The petitioner, at the relevant time, was posted as a Principal of Delhi Public School, Faridabad. A complaint was submitted by the parents of the students of the said school, wherein it was stated that their wards were studying in Class XII (Non-medical and Medical streams). The Principal promised to provide extra coaching classes for IIT/Medical, for higher studies. It is the case of the parents that the school was providing such extra coaching classes from the last eight years in its premises. In the FIR, it is also stated that for arranging these classes, the external faculty members/coaching institutes were engaged and fee was also determined by the Principal. At the time of admission in class XI, the students were assured by the petitioner that the extra coaching classes would be arranged at the school premises, for two years, to prepare them for IIT/Medical Entrance Test and the fees would be charged from each student in two instalments. The instalments fixed, per student, were Rs.15,000/- for the first year and Rs.10,000/- for the second year. The extra coaching classes were to be provided by Sanjay Singh of M/s Horizon Institute, 5-B/5, Tilak Nagar, New Delhi, for one year only and during that period, the prescribed syllabus was not completed. Another grievance made is that Rs.25,000/-, per student, for a period of two years package was taken in advance, whereas the same Criminal Misc. No. 49988-M of 2007 3 was to be charged in two instalments. It is stated that this amount was taken mostly by cheque but also by cash in a few cases. The Principal had pressurized the students to part this money to teachers Bhagwat Sarup Sharma and Sangeeta Chakravorty. Further allegation in the FIR is that the students, who did not pay the money, faced threats of being shifted to other sections of Science or Commerce stream. The classes were undertaken for an academic session 2005-2006, however, the same were not undertaken for academic session 2006-2007 and a request was made by the parents to the Principal to refund Rs.12,500/- each for one year when no classes were undertaken. A complaint was made to the police that a thorough enquiry be conducted and the Principal of Delhi Public School, Faridbad be asked to refund Rs.12,500/- to each student with 15% interest. Mr. Vinay Kumar Garg, Advocate, appearing for Delhi Public School, Faridabad, has relied upon an agreement (Annexure P3) to urge that it was executed for two years which pertains to two academic sessions i.e. 2004-2005 and 2005-2006 and the amount of Rs.25,000/- was accepted from each student in the year 2005. The accused knew very well that no agreement was executed for the academic session 2006-2007. At the most, an agreement had covered one year of the studies. From the perusal of the FIR and a report under Section 173 Cr.P.C. (challan), the following allegations have surfaced against the accused-petitioner:- a) That in his capacity as a Principal, knowing very well that there was an agreement for imparting extra coaching classes for two years, he, at the Criminal Misc. No. 49988-M of 2007 4 commencement of the academic session, had demanded and accepted an amount of Rs.25,000/- from each student, for two years, knowing fully well that the agreement (Annexure P3) shall cease to operate at the end of academic session 2006 and shall not remain in vogue for the academic session 2006-2007. b) Further allegation is that in case, the student had not taken coaching classes, his/her section would be shifted and this amounted to coercion to undertake extra coaching classes. c) Mr. Sunil Vashisht, Advocate, appearing for the complainant, stated that a third allegation to be noticed by the Court is that when the parents of the students had demanded refund of Rs.12,500/- each, so paid for the second year for which the education was not imparted, the accused had threatened them. d) That the amount was to be charged in two instalments of Rs.15,000/- and Rs.10,000/- per student, but the accused had charged the total amount in the very first year, therefore, this Court should infer that at very inception, the accused had fraudulent intentions to cheat the students. This Court is of the view that from the above said allegations, no offence of cheating has been made out against the accused. It is an admitted position that at the very inception when the amount of Criminal Misc. No. 49988-M of 2007 5 Rs.25,000/- was charged from each student, the school was having an agreement with M/s Horizon Institute for a period of two years commencing from academic session 2004-2005 till the end of academic session 2005-2006. Therefore, the aggrieved students after paying Rs.25,000/- each, in deed, had attended the classes and were imparted education for one academic year. It could not be comprehended by the accused as to whether the contract or agreement would be renewed for the next year or not. In these circumstances, the Court can make reference to Illustration (g) to Section 415 IPC, which defines cheating, reads as under:- “ Illustration (g) to Section 415 IPC: A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver and thereby dishonestly induces Z to advance money upon the faith of such deliver. A cheats; but if A, at the of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract”. A reference can also be made to Hotline Teletubes and Components Ltd. and Others v. State of Bihar and Another (2005) 10 Supreme Court Cases 261, wherein it was held that in case at a very inception of the contract between the parties there is no intention to cheat, it will be a case of civil liability. Furthermore, in Veer Parkash Sharma v. Anil Kumar Aggarwal and Another (2007)7 Supreme Criminal Misc. No. 49988-M of 2007 6 Court Cases 373, it was observed that where an intention to cheat is not discernible at very inception, no offence of cheating is made out. Furthermore, in Inder Mohan Goswami and Another v. State of Uttaranchal and Others 2007(4) Recent Criminal Reports 548, Hon'ble the Apex Court had observed that there is a growing tendency among the litigants to convert civil proceedings into a criminal case. From the facts, which have been stated in the FIR and a report under Section 173 Cr.P.C. (challan), it is apparent that Rs.25,000/- was received by the petitioner from each student, in his capacity as a Principal, for imparting extra coaching for a period of two years. In pursuance thereof, the petitioner had imparted education for one year. It was in the second year, the extra coaching could not be imparted. Thus, this Court is constraint to accept the present petition and quash the FIR along with all the subsequent proceedings. At this stage, Mr. Vinay Kumar Garg, Advocate, appearing for Delhi Public School, Faridabad, has contended that the petitioner had embezzled Rs.8,44,000/- from the reserves of the school. When the learned counsel was asked to read any allegation to this effect, from the report submitted by the Investigating Officer under Section 173 Cr.P.C., learned counsel has not been able to point out any portion from the said report. However, learned counsel has shown me a voucher of payment made by the Principal to M/s Horizon Institute with whom agreement (Annexure P3) was executed and stated that the said payment was made without any authorization. It is further contended that the Principal has been suspended and the proceedings for termination of his services have been initiated. All that this Court need to say, at this stage, is that Criminal Misc. No. 49988-M of 2007 7 the School may recover any funds unauthorizedly paid in excess by the Principal to M/s Horizon Institute in pursuance of an agreement (Annexure P3). As far as the present FIR is concerned, it only contains the grievance of the parents of the students. If the school has any grievance, they are at liberty to initiate any proceedings, civil or criminal, against the petitioner, separately, in accordance with the provisions of law. (Kanwaljit Singh Ahluwalia) Judge March 23, 2010 “DK”