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PETITIONER: RAJESH BAJAJ

       Vs.

RESPONDENT: STATE NCT OF DELHI AND OTHERS

DATE OF JUDGMENT:       12/03/2000

BENCH: K.T.Thomas, S.S.M.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

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subsequent understanding.

     Appellant  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 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:

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     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 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.