Badre Alam Mohammad Sajjad Shaikh vs. State Of Maharashtra - (High Court of Bombay) (29 Jun 2022)

In order to make out an offence of cheating in a commercial transaction, it has to be shown that both the elements, namely, deceit and injury are present

MANU/MH/2132/2022

Criminal

Present Applications are against a case registered for the offences punishable under Sections 420 and 406 read with Section 34 of the Indian Penal Code, 1860 (IPC).

The first informant lodged a complaint for the offences punishable under Section 420 and 406 of the Indian Penal Code, 1860 with the allegation that he had entrusted the crane to the Applicants and the latter committed default in payment of the hire charges as agreed, and thereby cheated him. By not returning the crane, the Applicants also committed criminal breach of trust. The learned Magistrate was persuaded to order investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC). On the strength of the said order, an offence was registered at Police Station. Apprehending arrest, the Applicants preferred present Applications.

In a commercial transaction, ordinarily, a mere failure to perform a promise, which causes injury to the promisee, does not amount to cheating. It has to be shown that both the elements, namely, deceit and injury were present. An offence of cheating can be said to have been made out, if from the nature of the transaction and the attendant circumstances, a legitimate inference can be drawn that the intention of the accused was dishonest since the inception of the transaction and the transaction was a mere subterfuge to lure the victim. If the accused has made a part payment and subsequently, there is a default on the part of the accused to pay the price of goods/services or perform any other promise, dishonest intention since inception of the transaction cannot be, generally, attributed.

The failure on the part of the Applicant to return the crane is a matter which necessitates effective investigation. Indisputably, the crane was entrusted to the Applicant for a particular purpose and period. The crane was not returned even after 24 months of the work order.

The hard fact is that the crane was entrusted to the Applicant. The Applicant failed to deliver the crane back to the complainant in accordance with the terms of the contract, evidenced by the work order. A report of theft which came to be lodged not only after the filing of the complaint in the instant case but also the instant application for pre-arrest bail before this Court, cannot be pressed into service to wriggle out of the situation. The custodial interrogation of the Applicant is necessary. Application rejected.

Tags : CHEATING BAIL GRANT