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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.