Case: Sayed Mohammed Masood Vs. State of Maharashtra, Through The Inspector In Charge &amp; Another

the commission of a cognizable offense and the information so lodged must provide a basis for the police officer to suspect the 18 commission of a cognizable offense. He has also referred to the case of T. T. Antony v/s State of Kerala, reported in (2001) 6 SCC 181. In paragraph 18 of the said judgment the Supreme Court held as under:"An information given under subsection (1) of Section 154 Cr.P.C. Is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offense recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends of with the formation of opinion under Section 169 of 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offenses. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the first information report FIR postulated by Section 154 Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offense disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offenses as may come to his notice during the investigation, will be statements falling under Section 162 Cr.P.C. No such information / statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C. Take a case where an FIR mentions cognizable offense under Section 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H the real offender who can be arraigned in the report under Section 173(2) or 173(8) Cr.P.C. As the case may be. It is of course permissible for the investigating officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused.Another judgment referred by him is the case of Ramesh Bajaj v/s State NCT of Delhi and others, reported in (1999) 3 SCC 259. In this case the Supreme Court took cognizance of the material that had become available to the investigating agency after the investigation had been started and it also quoted extensively from the Bhajan Lals case (supra) and in paragraph 9 it stated, If factual foundation for the offense has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. In paragraph 10 the Supreme Court held that the facts narrated in the complaint disclose commercial transaction or money transaction, but that was hardly a reason for holding that the offense of cheating could elude from such a transaction and noted that many a cheatings were committed in the course of commercial and money transactions. Then in paragraph 11 it gave the conclusion, which reads thus:"The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offense or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honor payment on receipt of invoices, and that the complainant realized later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities.13. At the cost of repetition we may mention that the facts in the present case are not at dispute at all that the investment made by each of the consumers to the tune of Rs.97,907/and in return they received Rs.2,40,000/.The only question which remained was whether the investors were entitled to the car at the end of the period of five years or not. There has been no intention to defraud at the time of inception of execution of the agreement. There can be made several interpretations of the clauses in the agreement if the agreement is taken as a whole. It is a well accepted principle of interpretation that while interpreting clause of agreement, whole of the agreement has to be taken into consideration.Applying the principles laid down by the various judgments of the Supreme Court hereinabove referred, we do not think that in the facts and circumstances of the case an offense of cheating is made out.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. Since there is no controversy on facts and no further facts need to be even investigated by the police because it is admitted case of both the parties that the monies were paid for a period of five years at the rate of Rs.4,000/per month but the vehicle was not returned. Whereas the case of the petitioner is that they could retain the vehicle and in terms of the agreement they could sell the vehicle to anybody and the complainant had the preference.Learned Senior Counsel also submitted that in order to make an offense under Section 420 of the Indian Penal Code, the accused must have the intention at the inception of the contract. However, there is nothing in the complaint or in the statement of the complainant to show that the accused had such an intention at the inception of the contract. In this connection, reliance is placed on the judgment of the Calcutta High Court in Raymond Ltd. (JKFT Division) v/s H. V. Doshi and Brothers Pvt. Ltd., reported in 2006(1) CHN 578, wherein the Court held, In order to establish cheating as provided in Section 420 of IPC it must be established that the accused petitioner had the intention to induce, deceive and cheat the complainant right from very beginning. In the instant case, nothing such happened as it transpired from petition of complaint. Similarly, the Supreme Court in Hira Lal Hari Lal Bhagwati v/s CBI, New Delhi, reported in (2003) 5 SCC 257  , held, It is settled law, by a catena of decisions, that for establishing the offense 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.Learned Senior Advocate appearing for the petitioner submits that in view of all these judgments and in view of the admitted fact with regard to the case, one thing is clear that there has been no intention to deceive at the inception of the contract and there can be genuine disputes between the parties with regard to the interpretation of various clauses of the agreement. He submits that paragraphs 8 and 15 of the agreement would need a construction so as not to render any of the clauses of the agreement redundant and that can be done by the civil court. He submits that in any case there is no cheating or fraud manifested by the conduct of the accused persons and as such the F.I.R. needs to be quashed.At the cost of repetition we may mention that the facts in the present case are not at dispute at all that the investment made by each of the consumers to the tune of Rs.97,907/and in return they received Rs.2,40,000/.The only question which remained was whether the investors were entitled to the car at the end of the period of five years or not. There has been no intention to defraud at the time of inception of execution of the agreement. There can be made several interpretations of the clauses in the agreement if the agreement is taken as a whole. It is a well accepted principle of interpretation that while interpreting clause of agreement, whole of the agreement has to be taken into consideration.Applying the principles laid down by the various judgments of the Supreme Court hereinabove referred, we do not think that in the facts and circumstances of the case an offense of cheating is made out.