Delhi High Court
Rajendra Narayan Vajpeyi vs State on 1 September, 1996
Equivalent citations: 64(1996)DLT99, 1996(39)DRJ393
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT
S.K. Mahajan, J.
(1) The petitioner is carrying on business under the name and style of Chanda Advertising and besides having office-at 32, Metcalf Street, Calcutta since 1978 had also opened an office in Delhi sometimes in 1991. Respondent No.2 is the proprietor of a firm known as M/s.SMN Phototype Setters with their office at 1-6, Lajpat Nagar-II, New Delhi. Since 1987 the petitioner had the dealings with respondent No.2 and used to get his work done from the said respondent for which regular bills used to be sent by her which in the normal course of business used to be paid by the petitioner. In the year 1992, the petitioner got some work done from respondent No.2 for which the said respondent submitted her bills and on a particular date a sum of Rs.l,36,394.00 was allegedly due from the petitioner to respondent No.2. Respondent No.3 was the office in-charge of the petitioner’s office in Delhi at the relevant time. It appears that for certain reasons the petitioner closed his office in Delhi and shifted his entire activities to Calcutta from where he was earlier carrying on business. Respondent No.2 after having failed in her efforts to recover the money allegedly due to her from the petitioner gave notice to him through her advocate. In spite of notice the amount was allegedly not paid by the petitioner. She, therefore, preferred a complaint against the petitioner and respondent No.3 in the Court of Additional Chief Metropolitan Magistrate alleging inter alia that the petitioner with dishonest intention not to pay the amount due to the complainant had closed his office in Delhi and had, therefore, allegedly committed an offence punishable under Section 420, 405, 406 IPC. The statements of three witnesses were recorded by the Metropolitan Magistrate and by order dated 20th July, 1995 summons were issued to the petitioner and respondent No.3 as according to the learned Metropolitan Magistrate, the facts and circumstances of the case, prima facie, disclosed an offence under Section 420/422 IPC.
(2) Being aggrieved by the order of summoning, the petitioner has filed this petition for quashing the same on the ground that even if the facts stated in the complaint were accepted in their entirety, they did not constitute any offence for which the petitioner and respondent No.3 could be summoned by the Metropolitan Magistrate.
(3) The allegations on the basis of which respondents No.2 wanted the petitioner and respondent No.3 to be summoned, have been made in the complaint dated March 27, 1993. It would be relevant to reproduce some of the 395 paragraphs which contain the allegations and which according to respondent No.2 constitute an offence punishable under Section 420/422 Indian Penal Code :- “3. That the accused No. I had approached the complainant in the year 1992 for getting some job works done in the due course of business, had placed certain orders for phototype setting etc. 5. That the accused No. 1 initially and accused No.2 subsequently with dishonest intention approached the complainant with a request to get the credit facilities for 60 days and the complainant having no knowledge of ill will and malafide intentions of the accused persons, acceded to their requests, with the result, the outstanding payment accumulated with accused No. 1 under the malafide intention. 6. That a total sum of Rs.l,36,394.00 was due when the accused persons made request, as mentioned in the above para and before the expiry of the credit facility period both the accused dishonestly shifted their activities to their Calcutta office with a view to prevent the recovery of liability/due amount. 10. That thereafter the complainant sent a legal notice to the accused through her counsel Mr.S.P.Kaushal, Kaushal & Associates, by registered post A/D on 16.1.1995 but the accused No.1 under the malafide intentions had not come forward to clear the outstanding dues. Copy of the notice dated 16.1.1995, sent under registered post is also enclosed hereto and is annexed as Annexure “C”. 12. That the accused persons made false representation to the complainant for getting credit facilities with a view to cause wrongful loss to the complainant and wrongful gain to themselves and their firm and as such, they committed an offence punishable under section 430 of the Indian Penal Code. Had the complainant known the ill intentions of the accused persons before acceding to their request for credit facility from her, she would not have worked for the accused persons on the terms/request of the accused persons. Therefore, the accused are also liable to be prosecuted and punished for committing an offence punishable u/s 420 read with section 415 of Indian Penal Code. That the accused No.1 having a clear contract/ understanding with the complainant to pay the amount after completion of job, has also committed violation of the terms and manner of the contract under which it was to be discharged and thus, the accused No.1 has also committed a criminal breach of trust and is liable to be prosecuted and punished for an offeree punishable under provisions of section 405/406 of Indian Penal Code.”
(4) In her statement before the Court all that respondent No.2 has stated is that the petitioner had asked for credit facility for sixty days in late 1992 and the payment accumulated to an amount of Rs.l,36,394.00 which despite several visits, requests and reminders was not paid to her by the petitioner and suddenly shifted their activities to Calcutta. It is further stated by her that “THE accused persons had committed a breach of contract by violating CW- 3/A and CW-3/B copy of the notice sent by my advocate is CW-3/C. Detailed description of the bills containing the amounts of several bills have been enclosed to the complaint.”
(5) By an order dated March Ii, 1996 this Court had called upon respondent No.2 to satisfy as to how in the facts and circumstances of the case, the criminal complaint was maintainable. Learned counsel for respondent No.2 has contended that as the petitioner has shifted his office from Delhi to Calcutta, it amounted to an act of cheating on his part as closure of his business was with a view to avoid the payment of the amount allegedly due to respondent No.2. No other argument has been advanced by learned counsel for respondent No.2. I fail to understand as to how a person can be prevented from closing an office in case the same is not found to be profitable to him or there are certain other reasons for him to close the same. The respondent No-2/complainant has deliberately not disclosed to the Court of Metropolitan Magistrate that the dealings between her and the petitioner had started in 1987. On a reading of the complaint, it appears as if it was for the first time in 1992 that an order was placed by the petitioner upon respondent No.2 and it was on account of non-payment of the amount allegedly due to the complainant in respect of this order that the petitioner had closed his office in Delhi. However, in the petition specific averment has been made by the petitioner that the dealings between the parties had started in 1987 and they had continued till the petitioner closed his office in Delhi so as to concentrate on business already existing in Calcutta since 1970. To this averment of the petitioner, respondent No.2 in his counter affidavit has not given any reply which clearly means that the respondent No.2 admits that the dealings between them had started in 1987. The transaction between the petitioner and respondent No.2 was entirely contractual in nature and mere non-payment of an amount by the petitioner to the complainant will not -under any circumstance constitute an offence under Section 420/422 Indian Penal Code To constitute an offence punishable under Section 420 Indian Penal Code, there must be fraudulent and dishonest inducement to deliver any property. Not only that the complainant has not mentioned any such inducement on the part of the petitioner in his complaint but there is not a whisper in her statement before Court of any alleged inducement by the petitioner to respondent No.2 to part with the property with an intention to cheat her. A mere non-payment of an amount in a purely business dealing between the parties cannot by any stretch of imagination be said an act of cheating. Complainant in her statement has made a grievance only of the petitioner having committed breach of the contract and having not paid the amount allegedly due to her. In my opinion, no ingredients of Section 415 of the Indian Penal Code were available to enable the Metropolitan Magistrate to summon the petitioner and respondent No.3. It appears that the Metropolitan Magistrate without any application of mind and without even going through the state- ment of respondent No.2 made in Court has issued summons to the petitioner and respondent No.3 in a mechanical manner. In my view, the complaint was wholly frivolous and there was no occasion for the Metropolitan Magistrate to issue summons to the petitioner and respondent No.3.
(6) In this view of the matter, I allow this petition and quash the proceedings pending in the Court of Metropolitan Magistrate against the petitioner and respondent No.3 in complaint case No.152 of 1995.
(7) Petition stands disposed of.