Bajaj VS. State Nct of Delhi & Ors  INSC 64 (12 March 1999)
Syed Shah Mohammed Quadri Thomas J.
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
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.
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.
further alleged in the complaint that respondent induced him to believe that he
is a genuine dealer, but actually his intentions were not clear.
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.
further mentioned in the complaint that he came to know later about the modus
operandi which respondent adopted in regard 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
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.
quoting Section 415 of IPC learned judges proceeded to consider the main
elements of the offence in the following lines:
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.
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.
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:
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;
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
caprice." It may be that the facts narrated in the present complaint would
as well reveal a commercial transaction or money transaction.
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
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.
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.
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.
therefore, allow this appeal and set aside the impugned order.