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 WRIT WRIT WRIT PETITION NO. 1602 OF 2007 PETITION NO. 1602 OF 2007 PETITION NO. 1602 OF 2007 Hindustan Lever Network ... ... Petitioner Mumbai. Vs. The State of Maharashtra & Ors. ... ... Respondents Mr. A. Desai i/b Mr. Prakash Naik for the Petitioner. Mr. Uday Warunjikar for Respondent no. 2 Mrs. U.V. Kejariwal, APP for State. CORAM CORAM CORAM : BILAL NAZKI & S.A. BOBDE, JJ. : BILAL NAZKI & S.A. BOBDE, JJ. : BILAL NAZKI & S.A. BOBDE, JJ. DATE DATE DATE : 5TH FEBRUARY, 2008 : 5TH FEBRUARY, 2008 : 5TH FEBRUARY, 2008 P.C. P.C. P.C. : : :- 1) Heard learned counsel for the Petitioner as well as learned counsel for the complainant and also the learned Additional Public Prosecutor. 2) This petition has been filed seeking quashing of F.I.R. bearing No.26 of 2007 registered by Khadak Police Station, Pune which is based on the statement of the complainant dated 25/1/2007 on the ground that it does not disclose any offence. It appears that one letter was sent to the Police by the complainant and on the basis of the letter, when he was called by the Police, Police have recorded detailed statement of the complainant which is, in fact, a 2 very long statement. The complaint discloses that the complainant entered into an agreement with Hindustan Lever Network Company. The Hindustan Lever Company intended to distribute and to sell their products through the centre to be established by the complainant. The complainant had invested money in establishing the centre and his case was that he was given commitment that the sale of the centre would be around Rs.8.00 Lacs per month and he would be earning income of Rs.25,000/- minimum per month and in case he failed to have the sale to the tune of Rs.8.00 Lacs, he will be paid Rs.25,000/-. The centre could not make the sale of Rs.8.00 Lacs and therefore the centre was ultimately closed and therefore the complainant filed the complaint that he was made to believe that he would sell goods to the tune of Rs.8.00 Lacs per month and earn substantial amount and in any case, if the sales were not to the tune of Rs.8.00 Lacs or thereabout, still Rs.25,000/- would be paid. Therefore, he thought that it was a case of cheating. 3) Cheating is defined under Section 415 of the Indian Penal Code thus : 3 415. 415. 415. Cheating Cheating Cheating. - 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 he 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". 4) The ingredients of Section 415 of the Indian Penal Code are : (1) There should be fraudulent or dishonest inducement of a person by deceiving him; (2)(i) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (ii) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (3) in cases covered by 2(ii), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 4 5) The intention to deceive should be at the inception before entering into any transaction with the other side. We have not seen any assertion in the complaint or statement made by the complainant that Hindustan Lever Co. had the intention of deceiving the complainant and therefore they entered into an agreement. In this connection, it is sufficient to refer to the Supreme Court Judgment reported in Hiralal Hari Hiralal Hari Hiralal Hari Lal Lal Lal Bhagwati vs. C.B.I., New Delhi, (2003) 5 SCC Bhagwati vs. C.B.I., New Delhi, (2003) 5 SCC Bhagwati vs. C.B.I., New Delhi, (2003) 5 SCC 257) 257) 257). The Supreme Court held : "It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed". 5 6) The second ingredient of cheating is that there should be a delivery of property and that delivery of property should be occasioned by deception, dishonesty and fraud. Here is the case where no property was delivered either to the alleged accused or anybody. Therefore, we do not find that the case of cheating is made out from the complaint and we find that there has been a contract between the parties unfortunately the business started by the complainant did not flourish and it failed, whether the responsibility lies on the Hindustan Lever Company or not or whether the complainant suffered any loss due to conduct of Petitioner and as such whether he is entitled to any compensation can be agitated in proper proceedings. We do not find that it is a case for criminal investigation as no criminal offence appears to have been committed. 7) Learned counsel for the complainant relied upon two judgments of the Supreme Court in (1999) (1999) (1999) 8 Supreme Court Cases 686, in Trisuns 8 Supreme Court Cases 686, in Trisuns 8 Supreme Court Cases 686, in Trisuns Chemical Chemical Chemical Industry vs. Rajesh Agarwal & Others Industry vs. Rajesh Agarwal & Others Industry vs. Rajesh Agarwal & Others AND AND AND (2002) 1 Supreme Court Cases 555, Kamaladevi (2002) 1 Supreme Court Cases 555, Kamaladevi (2002) 1 Supreme Court Cases 555, Kamaladevi Agarwal Agarwal Agarwal vs. State of W.B. & Others. vs. State of W.B. & Others. vs. State of W.B. & Others. These 6 cases are operating in different fields and there is no quarrel that even if it is a case of civil nature, it can also have criminal consequences and both the courses can be adopted by the concerned. Here we find that there is no criminal case made out in the complaint filed by the complainant. 8) We allow the petition and quash the F.I.R. ( BILAL NAZKI, J.) BILAL NAZKI, J.) BILAL NAZKI, J.) ( S.A. BOBDE, J.) S.A. BOBDE, J.) S.A. BOBDE, J.)