¥ 1. Rameshwar Lal alias Bram, S/o Kartik R Sahu, Aged 50 yaars, R/o Assistant Grads—III, O$ce of Ecutivs Enginesr, Bridge Construction Dspartment, Bilaspur (C.G.). 2. Ayohya Prasad. Rathore, So Late Bhuru R aged 55 years, Rio C—79, Yadunandn Nagar, Bilapur (C.G.). VS ERSU 1. Dhaulal athora, S/o Raguvir Singh, aged 7O years, R/o urani Basti, Kharsia, Tahsil Kharsia, Police Station Kharsia, District Raiga (C.G.). 2. Stais of Chhattisgh, through Collector, Bilaspur District Bilaspur,‘ (C.G.). CRIMINAL MISCELLANEOUS PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE; 1973. gsg :Han’bie Mr. T.P.Sharma, J.)r taa s Shri Vin Tekam, PL. for the State/ respondent o‘ 2t od N Presant : Shri Rajeev Shrivasv, Acivocate with Shri Prasant Gupta, Advocate for the patitioner/applicants. ORAL- ORDER (Passed on 29f 08! 2008) 1. This petition is dilected against the rder dated 11/ 3/2008 passed by o the Third Additional Sessions Judge, Bilaspur in criminal Revision No. 191/2007, Mg the order dated 14/6/2007 passed by the Judicial Magistrate First Class, Bilaspur whereby learned Judicial Magistrate First Class has framed the charge o oEen punishable under Section 420 of the f ce Indian Penal Code against the pplicants No. 1 8a 2. a 2. The order is challenged on the ground that the transaction is purely civil in nature. The allegatiOn made by the non-applicant No. 1 is not pt‘ima facie sufficient to constitute the offence punishable under Section 420 of the HIGH COURT OF CHHATTISGARH AT EILASPUR Crmim! Miscellaneous Petition . 3 2 i No 9 1 [008 PETITIONERS ACCUSED am xe d / am, a RESPONDENTS R COMPLAKNANT P rh ar Indian Penal Code and continuance of such proceeding would amount to abuse of the pmcess offhe Court. 3. Shri Rajeev Shrivastava, ,Advoca‘rs with Shn' Prasant Gupta, Advocate for the petitioners/applicants and Shzi Vinod Tekam, P.L. for the State] respondextt No. 2 are heard at the stage cf admission. 4. Order impugned and copy of complaint and another copy of the ix (iocuments filed 'on behalf of the applicant perused. 5. it is argued on behalf of the applicant that scope of interference in exercise of inherent jurisdiction is very limited land it may be used in rarest of rear cases. In the instance case allegation made by the non- applicant/complainant in his complaint and the statement recorded under Section 202 of the Cr.P.C., 1973 (‘Code of 1973’) reveals that one BD. Kanaskar, who was Onicer in Bridge Construction Department has issued the cheque in the name of non—applicant No. 1 but due to mistake instead of Dhau Lal, Dhau Ram was written. When mistake was came in to notice of the B.D. Kanskar then Shn‘ B.D. Kanskar took the cheque from the complainant for correction but instead of returing the same aiter correction it was handed over to applicant no. l who is an employee in same onice who authorized applicant No. 2 for encashment of the cheque. Cheque was encashed by the applicant No. 2 and money was given to applicant No. 1 who at the instance of non~applicant handed over the money to other employee Shti RC. Jain who is a relative of non—applicant No. l. 6. Applicants are employee and Were working under Shri B.D. Kanskar. They had obeyed the order of their superior otiicer. They have neither cheated the non—applicant nor they have dishonestly utilized the money for themselves. Non—applicant has already filed the civil suit for recovery of money due on the basis of alleged cheque. Present applicants have specifically pleadad the aforesaid facts in their written sta£ement The allegah‘on made by non-applicant No. 1/complainant against the applicants did not constitute the caeace punishable under Section 420 of the IPC but it coastitute civil wrong. Non—applicant has already hled suit for recovery of his money therefore, contjiluance of criminal yroceeding would be an abuse of process of the Court. . 7. It is submitted on behalf of the applicants that prosecution is required to Show pm'ma facie that intention of the applicant was of dishonestly from its incepu'on. In absence of any fraudulent and dishonest intention from its inception any proceeding would only amount to abuse of the process of the Court. 8. Reliance has been placed in the matter of Hridaya Ranjan Prasad Verma and Others v. State of Bihar and another_repoxted in_12000)4 SCC 1681 in which it has held that allegations in the complaint read as a Whole not indicating, expressly or impliedly, any intentional deception on the part of the appellants right nnm the beginming of the transaction thus pn'ma facie the allegations made by respondent 2 not constituting offence punishable under S, 420 or allied oh‘ence mentioned in the complaint, continuation of the criminal proceeding against the applicant is amount to an abuse of process of the Court. Paras 14 85 15 of the judgment reads as under:— 14. On a reading of the section it is manifestlthat in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section 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 naudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. l [2000)4 sec 168 " l 15. In detarmining the question it has to be kept in mind that the distinctimi between mere breach of contxact and the oEence of cheating is a &1e one’ It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequently conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed, Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessaiy to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. 9. At this stage non~applicant No. 1 has not noticed. Learned Counsel for the applicant N0. 2 submits that material collected by the non-applicant No. 1 is sufdcient for initiation of criminal proceeding against the applicants. The allegation made by the non-applicant against the applicant constitute the odence punishable under Section 420 of the Indian Penal Code and as well as sufhcient for initiation of civil suit. Continuation of criminal proceeding in this case would not be an abuse of process of Court. 10. This is a petition for quashment of the criminal. proceeding in exercise of power under Section 482 of the Cr.P.C., 1973 (hereinafter referred to as ‘the Code’) the scope of interference is limited and it may be exercised in exceptional circumstances while dealing with the provisions of Section 482 of the Code in case of State of Punjab vs. Kasturi Lal2 reported in 2004 Cr.L.J. 3866 (3868) SC, Apex Court observed that; “Exercise of power under S. 482‘ of the Code is a case of this nature K is the exception and not the rule The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order 2 2004 Cr.L.J. 3856 (3868) SC vi: under the Code, (ii) 'to prevent abuse of the process nor desirable to lay down any inflexible ruie which the exercise of inherent jurisdiction. No legislati of Court, and would govern ve enactment (iii) to otherwise secure the ends of justice. It is neither possible dealing with pmcedure can provide for all cases that may possible anse, Courts therefore, have inherent powers apart from express 11. In the light of aforesaid legal proposition} I examined the material available on record, Pemsal of copy of complaint, copy of written statement tiled on behalf of the applicants in a civil suit, copy of the statement recorded under Section 200 to 203 of the Code, copy of the charge and copy of the order impugned reveals that cheque issued by the B.D. Kanaskar to non- applicant No.1 has bearing some mistake when mistake same was taken back by the B.D. Kanaskar with assurance that after correction he will return the cheque to the non-applicant No. 1‘ The mistake of cheque was rectined but instead of returning the cheque back to the non- applicant No, l/complainant it was given to the applicant No. 2, who directed the applicant No. l for encashment of the cheque. Applicant No. 1 tendered No. 1 gave money was noticed then the cheque to the bank and encashed the same. Applicant of the cheque to the applicant No. 2 but it has not been given by the correction of the cheque it was taken horn the complainant and cheque was encashed but amount of Cheque was not given to the no Applicants are employees where B.D. Kanaskar was WO n~applicant No. 1. O$cen Applicants were under the obligation to obey the valid order but not to obey any illegal order or direction specially with a View to commit any crime or to cheat any person. The material collected by the complainant is sumcient to Show that applicant had unauthom'zed and illegally cashed the cheque relating to the complainant and has not give the amount to the complainant which constitute the oh‘ence punishable under Section 420 of the Indian penal Code and also shows that dishonest and nadulent intention of the applicants was from its inception. In this case act committed by the applicants pi‘ima facie constitute the offence punishable Under Section 420 of the Indian Penal Code and as well as make them liable for civil Wrong. Complainant/non—applicant No. 1 has aheady nled the civil suit for recovery of the dues on the basis of cheque 12. Apex Court has held in case of M. Krishnan v. Vijay Singha reported in AIR 2001 SC 3014 that continuance of civil suit or case of civil nature is not sunicient for quashing the criminal proceeding. Pala- 5 reads as follows:— 5. Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud in the whole transaction, thee is generally some element of civil nature. However in this case the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents hand filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complaint failed to prove the allegations made by him the complaint the respondents Wee entitled to discharge or acquittal but not otherwise. It mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigations, apprehending criminal against them would be encouraged to nustrate the course of justice and law by nling suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings as distinguished from the criminal action, had to be 3 AIR 2001 sc 301'4 / \ adjudicated and concluded by adopting separate yard sticks. The onus of proving the allegations beyond reasonable doubts in criminal case, is not applicable in the civil proceedings which can ‘ be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not in any why justiiied to observe: 13. While dealing with the same question in case of Lalmuni Devi v. State of Bihar and others4 reported in_(2001)2 SCC 17 Apex Court has held that criminal proceeding cannot be quashed on the ground that case also false under category of civil wrong. Para 8 as follows:- 8. There could be no dispute to the proposition that if the complaint does not make out an o§ence it can be quashed. However, it is also settled law that facts may given rise to a civil claim and also amount to an oEence. Merely because a civil claim is maintainable does not mean that the cu'minal complaint cannot be maintained. In this case, on the facts it cannot be stated, at this prima facie stage, that this is a hivolous complaint. The High Court does not state that on facts no oh‘ence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed. 14. In the present case material collected by the complaint] non-applicant is prima facie suficient to draw inference that applicants have committed odence of cheating punishable under Section 420 of the Indian Penal Code. Their intention was fraudulent and dishonest right nom its inception. They are also liable for civil wrong. The pendency of civil suit or case of civil nature is not suihcient for quashing of the present criminal proceeding. Applicant has not tiled present petition for taking cognizance against B.D. Kanaskar and P.C. Jain. They have not been able to show prima facie that trial Court has committed illegality by not taking cognizance against B.D. Kanaskar and P.C. Jain. 4 (2001p sec 1'7' 15. Consequently, the petition is deserves to be dismissed and it is hereby dismissed at the stage of admission. 16. In View of the above, LA. No. 01/ 2008 stands disosed of. p Sdl- T. P. Sharma Judge