Bom HC | For the offence of cheating under Penal Code, 1860, is intention of cheating important from inception? Read on

Bombay High Court: The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., observed that,

“…in the case of cheating, the intention of cheating right from the inception is important.”

Instant matter was directed towards quashing the FIR registered for the offence punishable under Sections 420, 323, 504, 506 of Penal Code, 1860.

Respondent 2 dealt used to sell onion collected from small farmers in the wholesale market on commission. Allegedly the applicants had purchased a huge quantity of onion. Respondent 2 submitted that the amount to the tune of Rs. 30,77,431/- towards the price of purchased onion remained unpaid.

Even after repeated demands for the said amount, applicant did not pay the said amount.

Analysis, Law and Decision

High Court expressed that the power of quashing the criminal proceeding should be exercised very sparingly and with circumspection and that too in a rarest of rare cases.

Court is not justified in embarking upon the inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim and caprice. 

Court noted that respondent 2 did not dispute about the filing of the complaints against the deceased for having committed the offence punishable under Section 138 NI Act.

Bench was surprised to note that the allegations were made against the deceased alone with the specific contention that he was the proprietor and in that capacity, he had issued the cheques for the balance amount.

Adding to the above, Court observed that it was not stated in those complaints that deceased Selvakumar, being a power of attorney, had issued the cheques in favour of respondent 2 for the balance amount on behalf of the firm and therefore, since he being the signatory of the cheques, the complaints under Section 138 of the Negotiable Instruments Act, 1881 came to be filed against him.

After the death of the deceased, respondent 2 changed his stand and instituted the suit wherein the applicants have been implicated as defendants.

In Court’s opinion, respondent 2 had filed the complaint with some ulterior motive and mala fide intention.

“…lodging of the complaint in the police station with some mala fide intention is nothing but an attempt to convert a civil dispute into a criminal dispute.” 

In Supreme Court’s decision of Anand Kumar Mohatta v. State (NCT of Delhi), (2019) 11 SCC 706, it was ruled that where a civil dispute is converted into a criminal case to harass the accused, the exercise of power to quash criminal proceedings warranted.

Dispute in the present matter was purely of civil nature and it did not constitute a criminal offence.

Hence, Court opined that the F.I.R. lodged by respondent 2 is nothing but an abuse of the process of the court and the same is necessary to be quashed and set aside in the interest of justice.

In view of the above discussion, criminal application was disposed off. [Thirumalai Prabhu R v. State of Maharashtra, 2021 SCC OnLine Bom 874, decided on 18-06-2021]


Advocates who appeared in this case:

Advocate for Applicants: Mrs. Sonawane Sunita G.

APP for Respondent No. 1-State: Mr. G.O. Wattamwar

Advocate for Respondent No. 2: Mr. Rahul R. Karpe

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