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PETITIONER:

RAJESH BAJAJ

Vs.

RESPONDENT:

STATE NCT OF DELHI AND OTHERS

DATE OF JUDGMENT: 12/03/1999

BENCH:

K.T.Thomas, Syed Shah Mohammed Quadri

JUDGMENT:

Thomas J.

Leave granted.

Appellant lodged an FIR with the police for the offence under

Section 420, Indian Penal Code. A Division Bench of the Delhi

High Court quashed the FIR on the premise that the complaint did

not disclose the offence. The Division Bench reminded themselves

that jurisdiction under Article 226 of the Constitution or

Section 482 of the Code of Criminal Procedure should be

exercised sparingly and with circumspection for quashing

criminal proceedings. Nevertheless, learned judges found that

the case on hand could not pass the test laid down by this Court

in State of Haryana vs. Bhajan Lal [1992 Suppl.(1) SCC 335].

The appellant is obviously aggrieved by the aforesaid course of

action adopted by the High Court and hence he filed the special

leave petition. In the complaint filed by the appellant before

the police, on the strength of which the FIR was prepared, the

following averments, inter alia, were made. Appellant belongs to

a company (M/s Passion Apparel Private Limited) which

manufactures and exports Readymade garments. On 15.11.1994 fifth

respondent (Gagan Kishore Srivastava) Managing Director of M/s

Avren Junge Mode Gumbh Haus Der Model approached the complainant

for purchase of Readymade garments of various kinds and induced

the appellant to believe that 5th respondent would pay the price

of the said goods on receiving the invoice. Such payment was

promised to be made within fifteen days from the date of invoice

of the goods which complainant would despatch to Germany.

Appellant believed the aforesaid representation as true and on

that belief he despatched goods worth 4,46,597.25 D.M. (Deutsch

Marks). In March/April 1995 respondent on receipt of 37

different invoices got the goods released and sold them to

others. But the respondent paid only a sum of 1,15,194 D.M.

Appellant further alleged in the complaint that respondent

induced him to believe that he is a genuine dealer, but actually

his intentions were not clear.

Appellant also mentioned in the complaint that one of the

representatives of appellants company went to Germany in October

1995 for realising the amount on the strength of an understanding

reached between them that respondent would pay 2,00,000 D.M. in

lieu of the remaining part of the price. However, the respondent

did not honour even that subsequent understanding.

Appellant further mentioned in the complaint that he came to know

later about the modus operandi which respondent adopted in regard

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to certain other manufacturers who too were duped by the

respondent to the tune of rupees ten crores. Learned Judges of

the High Court have put forward three premises for quashing the

FIR. First is that the complaint did not disclose commission of

any offence of cheating punishable under Section 420 of the

Indian penal Code. Second is that there is nothing in the

complaint to suggest that the petitioner had dishonest or

fraudulent intention at the time the respondent exported goods

worth 4,46,597.25 D.M. by 37 different invoices. There is also

nothing to indicate that the respondent, by deceiving the

complainant, induced him to export goods worth 4,48,597.25 D.M.

The third is that on the face of the allegations contained in the

complaint it is purely a commercial transaction which in a

nut-shell is that the seller did not pay the balance amount of

the goods received by him as per his assurance.

After quoting Section 415 of IPC learned judges proceeded to

consider the main elements of the offence in the following lines:

"A bare reading of the definition of cheating would suggest that

there are two elements thereof, namely, deception and dishonest

intention to do or omit to do something. In order to bring a

case within the first part of Section 415, it is essential, in

the first place, that the person, who delivers the property

should have been deceived before he makes the delivery; and in

the second place that he should have been induced to do so

fraudulently or dishonestly. Where property is fraudulently or

dishonestly obtained, Section 415 would bring the said act within

the ambit of cheating provided the property is to be obtained by

deception."

It was thereafter that the High Court scanned the complaint and

found out that there is nothing in the complaint to suggest that

the accused had dishonest or fraudulent intention at the time of

export of goods.

It is not necessary that a complainant should verbatim reproduce

in the body of his complaint all the ingredients of the offence

he is alleging. Nor is it necessary that the complainant should

state in so many words that the intention of the accused was

dishonest or fraudulent. Splitting up of the definition into

different components of the offence to make a meticulous

scrutiny, whether all the ingredients have been precisely spelled

out in the complaint, is not the need at this stage. If factual

foundation for the offence 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. For quashing an

FIR (a step which is permitted only in extremely rare cases) the

information in the complaint must be so bereft of even the basic

facts which are absolutely necessary for making out the offence.

In State of Haryana vs. Bhajan Lal (supra) this Court laid down

the premise on which the FIR can be quashed in rare cases. The

following observations made in the aforesaid decisions are a

sound reminder:

"We also give a note of caution to the effect that the power of

quashing a criminal proceeding should be exercised very sparingly

and with circumspection and that too in the rarest of rare cases;

that the court will not be justified in embarking upon an enquiry

as to the reliability or genuineness or otherwise of the

allegations made in the FIR or the complaint and that the

extraordinary or inherent powers do not confer an arbitrary

jurisdiction on the court to act according to its whim or

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caprice."

It may be that the facts narrated in the present complaint would

as well reveal a commercial transaction or money transaction.

But that is hardly a reason for holding that the offence of

cheating would elude from such a transaction. In fact, many a

cheatings were committed in the course of commercial and also

money transactions. One of the illustrations set out under

Section 415 of the Indian Penal Code (illustrations f) is

worthy of notice now:

"(f) A intentionally deceives Z into a belief that A means to

repay any money that Z may lend to him and thereby dishonestly

induces Z to lend him money, A not intending to repay it. A

cheats."

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 offence or not. The complainant has

stated in the body of the complaint that he was induced to

believe that respondent would honour payment on receipt of

invoices, and that the complainant realised later that the

intentions of the respondent were not clear. He also mentioned

that respondent after receiving the goods have 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.

The High Court seems to have adopted a strictly hyper-technical

approach and sieved the complaint through a cullendar of finest

gauzes for testing the ingredients under Section 415 , IPC. Such

an endeavour may be justified during trial, but certainly not

during the stage of investigation. At any rate, it is too

premature a stage for the High Court to step in and stall the

investigation by declaring that it is a commercial transaction

simplicitor wherein no semblance of criminal offence is involved.

The appellant is, therefore, right in contending that the FIR

should not have been quashed in this case and the investigation

should have been allowed to proceed.

We, therefore, allow this appeal and set aside the impugned

order.