Any breach of contract would not give rise to a cheating offence and it would only be the cheating in those circumstances where any disappointment was played at the very start. The same can’t mean cheating if the purpose of cheating emerges afterwards. In other words, the complaint has to establish, in order to be a fraudulent or dishonest intention at the time of the promise or representation, to constitute a misuse offence. The judgment was passed by the High Court of Gauhati in the case of Subrata Urmimala Baruah and 2 Ors. v. State of Assam & Anr. [Crl.Pet./222/2019] by Single Bench consisting of Hon’ble Justice Mir Alfaz Ali.
The respondent lodged a complaint against the petitioners alleging commission of offence u/s 120(B)/420/506/34 of IPC. On receipt of the complaint, learned Judicial Magistrate took cognizance and having examined two witnesses u/s 200 CrPC issued process against the petitioners. Aggrieved by the action of the Magistrate the petitioners have approached this Court for invoking the inherent power u/s 482 CrPC to quash the complaint and the criminal proceeding.
Learned counsel for the petitioners submitted that the averment made in the complaint did not make out any ingredient of criminal offence and disclosed only a civil dispute pertaining to breach of contract. He further, submits, that the complainant has taken recourse to criminal action only to harass the petitioners and to pressurize them for resolution of the civil dispute, and as such, the criminal proceeding against the petitioners is abuse of the process of court, which is required to be quashed.
Learned counsel for the respondents submitted, referring to the allegations made in the complaint, the complaint prima facie makes out criminal offence, and as such, the criminal proceeding cannot be quashed. He further, contends that in a proceeding u/s 482 CrPC for quashing a criminal proceeding at the initial stage, the High Court cannot embark upon an enquiry as to the merit of the case or to find out whether the criminal proceeding would end in conviction or not. The court is only required to see whether the allegations made in the complaint in its face value prima facie makes out any offence.
While allowing the petition the court observed that, “there is no allegation in the complaint that the petitioners entered into a conspiracy for making the agreement for sale of the flat or to deceive the complainant, nor there is any averment at all in the complaint to indicate that the petitioners were part or partner of Shymal Baruah and associates as mentioned in the agreement. Cognizance was also taken against the petitioners u/s 506 IPC, which provides punishment for the offence of criminal intimidation defined in Section 503 IPC.” The complaint also did not contain any averment to disclose the ingredients of any offence u/s 506 IPC. Therefore, this Court is of the view that the complaint in the instantdisplay_pdf.phpTHF24 case does not disclose any criminal offence against the present petitioners.