- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.146 OF 2001 WRIT PETITION NO.146 OF 2001 WRIT PETITION NO.146 OF 2001 Iqbal Harun Dalla ...Petitioner vs. Tabassum Abdul Sattar and another ...Respondents Mr.Prakash Naik for the petitioner Mr.J.P.Yagnik A.P.P. for State None for the Respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 4,2008 : AUGUST 4,2008 : AUGUST 4,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned counsel for the Petitioner were heard on 1st August 2008. However, the petition was not decided as none appeared for the first Respondent on that day. With a view to give an opportunity to the first Respondent to appear and contest the petition, the same was adjourned till today. 2. Today, when the petition is called out, none appears for the first Respondent. 3. The petitioner has filed this petition invoking Article 227 of Constitution of India read with section 482 of the Code of Criminal Procedure,1973 for quashing the proceeding of the complaint filed by the first Respondent herein. - 2 - 4. The first Respondent alleged that she was a constituted attorney of one Shafiq Abdul Rahim who is the Proprietor of M/s.Sagar Enterprises and that she was managing and conducting the business of M/s.Sagar Enterprises. In the said complaint the Petitioner has been arraigned as an accused by stating that he is the proprietor of M/s.Dalla Enterprises and that he is holding power of attorney to manage the business of his mother in the name and style of M/s.Chistiya Finance. It is stated that the said business is the proprietary concern of the petitioner’s mother. 5. It is alleged in the complaint that in the year 1988, the petitioner had business dealings with M/s.S.S.Enterprises which is managed by the first respondent. It is stated that the business relationship developed between the petitioner and the first respondent. It is stated that on the representation made by the petitioner, the first Respondent was induced to part with a sum of Rs.4,25,000/- in favour of the petitioner which was paid by the three different pay orders. One pay order in the sum of Rs.1,25,000/- was issued in favour of M/s.Chistiya Finance and other two pay orders were issued in the name of M/s.Dalla Enterprises. It is alleged that after receiving the amounts payable under the pay order, the petitioner failed and neglected to return the said amounts. It is alleged that after continuous demands, the petitioner issued two cheques in the sum of Rs.1,25,000/- and - 3 - Rs.1,00,000/- and third of Rs.2,00,000/- in May 1991 and the said cheques were dishonoured. 6. It is alleged in the complaint that on 20th October 1992, the petitioner agreed to pay lumpsum amount of Rs.2,50,000/- to the first Respondent towards her dues and handed over 3 post dated cheques in the sum of Rs.25,000/-, Rs.25,000/- and Rs.2,00,000/-. It is stated that the said cheques were dishonoured. An allegation was made in the complaint of commission of offence punishable under section 420 of the Indian Penal Code. 7. The first Respondent examined herself before the learned Magistrate. By order dated 6th August 1999, the learned Magistrate directed that a charge be framed against the petitioner for an offence punishable section 420 of the I.P.C. It must be also noted here that the application for discharge made by the Petitioner was rejected by order dated 17th November 2000 on the ground that in view of the order dated 6th August 1999, a case was already adjourned for framing charge. 8. The learned counsel for the Petitioner invited my attention to the verification statement of the first Respondent as well as the deposition of the first Respondent. He placed reliance on the decision of the Apex Court in the - 4 - case of Inder Mohan Goswami and Another vs. State of Uttaranchal and others (AIR 2008 Supreme Court page 251). He submitted that even going by the assertions made by the first Respondent in her evidence, no case was made out for framing charge. 9. I have carefully considered the submissions. The case made out by the first Respondent in the complaint is that the petitioner had induced her to part with a sum of Rs.4,25,000/-. The allegation is that though the said amount was paid by pay orders, the petitioner did not bother to repay the amount. Reliance is placed on the cheques issued by the petitioner which were dishonoured. In the cross examination the first Respondent has stated that the petitioner had more than one dealings with M/s.Sagar Enterprises. In the cross examination, she admitted that apart from the business transaction with the firm of the petitioner, she had business transaction with the firm M/s.Chistiya Finance of which the mother of the petitioner was the proprietor. When a question was asked in the cross examination to the effect that whether the amount was advanced by the first Respondent in her individual capacity or on behalf of Sagar Enterprises. She stated that the amount was advanced by her behalf by M/s.Sagar Enterprises. 10. It will be necessary to refer the relevant portion of the - 5 - judgment of the Apex Court in case of Inder Mohan Goswamy (supra). The Apex Court referred to the definition of cheating under section 415 of the Indian Penal Code. In paragraph 41 of the said decision, Apex Court held thus : "41. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning." 11. Thus, necessary ingredient of the section is that the accused must be shown to have a fraudulent or dishonest - 6 - intention at the time of making promise. The Apex Court held that on mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise. 12. Perusal of the verification statement as well as deposition of the second Respondent does not show that the petitioner had a fraudulent or dishonest intention at the time of making promise. On plain reading of the statement of verification of the first Respondent, I find that the case of existence of fraudulent or dishonest intention at the time of making promise was not made out. In the circumstances, section 420 of the Indian Penal Code was not attracted. There is no specific case made out of intentionally inducing the first respondent. 13. In view of the averments made in the complaint and taking the statements of the first Respondent in her deposition as it is, no case is made out against the petitioner. In the circumstances, a case is made out for quashing the complaint. Rule is made absolute in terms of prayer clause (a) accordingly. JUDGE JUDGE JUDGE