Crl. Misc. No. M-48063 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-48063 of 2007 DATE OF DECISION: February 09, 2010 Usha Panwar .........PETITIONER(S) VERSUS State of Haryana and another ......RESPONDENT(S) CORAM: HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. R.S. Cheema, Sr. Advocate, with Mr. Sumeet Goyal, Advocate, for the petitioner(s). Mr. Gaurav Dhir, D.A.G., Haryana. AJAI LAMBA, J. (ORAL) This petition under Section 482 Cr.P.C prays for quashing complaint Annexure P-3 entitled Pyare Lal Vs. Smt. Usha Panwar and others pending in the Court of Additional Chief Judicial Magistrate, Hisar and order of summoning Annexure P-6 dated 13.04.2006 whereby the petitioner has been summoned to stand trial for commission of offence under Section 420 read with Section 34 IPC. Learned counsel for the petitioner, in the short contention, states that ingredients of cheating as required under Section 415 IPC are not made out. The necessary ingredients for alleging commission of offence under Section 420 IPC have not even been pleaded in the complaint. It has further been contended that the complaint has been filed for mala fide reasons in view of the fact that limitation for filing suit for recovery has expired. Crl. Misc. No. M-48063 of 2007 2 Learned counsel for the respondent-complainant has taken a technical ground to the effect that the order of summoning was challenged before the Court of Sessions which petition, however, was subsequently withdrawn. Learned counsel for the respondent, however, has not been able to indicate from the complaint or material placed before the Judicial Magistrate that the petitioner had dishonestly induced the complainant for parting with the property. I have considered the contention. The complaint has been lodged with the plea that the accused (in the complaint) were regular customers of the complainant for a number of years and had been purchasing cloth on credit and making payment in time. It was projected by the accused that Raghuvir Singh Panwar is posted as an Engineer with Barbar Shipping Company in Dubai. There is a great demand for cloth in Dubai and, therefore, they would like to purchase cloth from the shop of the complainant so as to sell it in Dubai and make heavy profit. Accused purchased cloth worth Rs. 2,76,068/-. Delivery of the material was taken. Payment for the goods was not made. In regard to the commission of offence, contents of para no. 7 of the complaint are relevant which read as under:- “07. That now the complainant has come to know that the accused did not start any business in Dubai relating to sale of cloths and that the accused did not take the above said goods to Dubai and that the accused had sold these goods in Hisar only immediately after purchasing the same from the complainant, therefore, the accused have committed the offences of cheating punishable under Section 420 of IPC Crl. Misc. No. M-48063 of 2007 3 with the complainant by making false representation that the accused have started the business of selling cloths in Dubai.” On a perusal of the above extracted portion, which is the only recital in the complaint in the context of the commission of the alleged offence, it transpires that the complainant felt agitated because the accused had not started the business in Dubai for sale of cloth. Cloth was not taken to Dubai and had been sold in Hisar, immediately after purchasing the same. I am of the considered opinion that the recital in the complaint as extracted above does not constitute an offence of cheating as against the petitioner. Even if it is the admitted case that cloth worth Rs. 2,76,068/- was taken by the accused and money was not paid, it would only be a civil dispute. Selling the cloth in Dubai or at Hisar was not the concern of the complainant. As per the case set up in the complaint, the accused was to sell the cloth in Dubai on higher profit. Since the complainant was not to receive the profit to be made by the accused by way of sale of cloth in Dubai, the said allegation would not allow the complainant to invoke the offence of cheating as against the accused. The agreement between the complainant and the accused was only to the effect that the complainant would sell cloth to the accused for which the accused would make payment. This, however, per se would not constitute offence of cheating as defined under the provisions of Section 415 Cr.P.C. Under the circumstances, at the most it is the case of non- payment for material purchased and would give cause to the complainant to file a suit for recovery. This is particularly so because in para no. 2 of the complaint, it is the admitted case of the complainant that for the last many years the accused had been purchasing cloth from the complainant on credit, Crl. Misc. No. M-48063 of 2007 4 however, making payment in time. In view of the above given facts and circumstances, even if the averments made in the complaint are accepted to be correct, commission of offence is made not out. This petition is allowed. Complaint Annexure P-3 entitled Pyare Lal Vs. Smt. Usha Panwar and others pending in the Court of Additional Chief Judicial Magistrate, Hisar and order of summoning Annexure P-6 dated 13.04.2006 whereby the petitioner has been summoned to stand trial for commission of offence under Section 420 read with Section 34 IPC are hereby quashed. 09.02.2010 (AJAI LAMBA) shivani JUDGE