HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION No. 4473 OF 2008 DATED 19th October, 2011 BETWEEN Shaik Feroz@ Munna …….Petitioner and The Station House Officer, Gudivada Town P.S., Gudivada, Krishna District, rep. by Public Prosecutor, ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION No. 4473 OF 2008 ORDER: This Criminal Petition under Section 482 Cr.P.C. is filed seeking to quash the crime No.107 of 2008 registered under Section 420 IPC on the file of the Station House Officer, Police Station, Gudivada, Krishna District. The second respondent herein filed a private complaint under Section 190(1) Cr.P.C. before the learned Additional Judicial Magistrate of First Class, Gudivada, alleging that the petitioner approached the second respondent for decoration of the Kalyana mandapam on occasion of his son’s marriage and reception to be performed in Atluri Basavaiah & Suryakumarigarla Kalyana Mandapam, Gudivada on 25.11.2007 and 26.11.2007 respectively and the second respondent having satisfied with the earlier work performance of the petitioner and after due negotiations, placed an order for decoration with the petitioner to a tune of Rs.2,15,000/- and an advance of Rs.50,000/- was paid to the petitioner in regard thereto. However, on coming to know that the petitioner had been engaged for decoration works, the owner of the said Kalyanamandapam intimated the second respondent raising an objection for placing an order with the petitioner and refusing to allow him to enter into the kalyanamandapam on the ground that the petitioner damaged the property of the kalyanamandapam in the earlier functions. It was further alleged that the petitioner suppressing the aforesaid dispute and without disclosing the warnings given to him by the owner of the said kalyanamandapam, approached the second respondent and took a payment of Rs.50,000/- in cash towards advance with dishonest intention to have wrongful gain for himself and to cause wrongful loss to the second respondent. It was also alleged that when the second respondent tried to meet him and recover the aforesaid advance amount, the petitioner is avoiding to return the advance payment in one way or the other. The Court below took the cognizance of the offence in the said complaint and forwarded to the first respondent-police for investigation, who registered the same as Crime No. 107 of 2008 and took up investigation. The learned Counsel for the petitioner submitted that the petitioner has neither taken up the decoration works from the second respondent nor had he received any amount in advance from him. He submitted that all the allegations made in the complaint are false and not attracted by the ingredients of offence punishable under Section 420 IPC. Heard. Perused the case file. To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention can be inferred from the facts and circumstances of each case. To establish the charge under section 420 I. P. C. , it must be proved not only that he has cheated someone, but also that by doing so, he has dishonestly induced the person who was cheated to deliver any property, etc. A person can be said to have done a thing dishonestly, if he does so with an intention of causing wrongful gain to one person and wrongful loss to another person. Wrongful loss means loss of property to which a person is entitled to, while wrongful gain to a person means, gain to him by unlawful means of property to which the said person gaining is not legally entitled to. To constitute the offence of cheating, it is not necessary to prove both wrongful gain and wrongful loss. It is enough to establish existence of either of them. Mens rea is an essential ingredient of the offence of cheating. Dishonest concealment of a fact is deception within the meaning of Section 415 I. P. C. Prima facie, there is no material evidence, except the eye witnesses LWs. 3 and 4 in whose presence the second respondent is said to have paid advance, to prove that the second respondent had paid an amount of Rs.50,000/- to the petitioner towards advance. However, considering the facts and circumstances and the nature of profession of the complainant, at this stage, it cannot be said that the second respondent made a false complaint against the petitioner, who is in no way concerned to him and further there is no need to make such a false complaint against the petitioner. Further, it is to be seen in the case on hand that the second respondent levelled allegation of cheating against the petitioner and when he tried to meet him to recover the amount alleged to have been advanced, the petitioner is avoiding to return in one way or the other. If at all the petitioner has not cheated the second respondent as alleged, nothing prevented him to settle the dispute with the second respondent. In those circumstances, at this stage this Court cannot believe the version of the petitioner as the police are investigating the case. That apart, when a complaint is referred to the police station for investigation, the mala fides of the complaint at that stage would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused. The allegations of mala fides against the complaint are of no consequence and cannot by themselves be the basis for quashing the proceedings In as much as the second respondent has made specific allegation of cheating attracting the offence punishable under Section 420 IPC against the petitioner, there are absolutely no valid or justifiable grounds to exercise the power of this court under Section 482 Cr.P.C. to quash the aforesaid crime. The Criminal Petition is therefore dismissed. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 19th October, 2011. Msnro