JUDGMENT

RAJESH SEKHRI, J. (ORAL) –

1. The petitioner has invoked inherent jurisdiction of this Court, under Section 561-A of Code of Criminal Procedure, 1989 [“Cr.P.C.”] for quashment of FIR No. 87/2013 of Police Station, Bishnah, for offences under Section 420 RPC.

2. Before a closer look at the grounds of challenge, urged in the memo of present petition, it shall be expedient to have an overview of the background facts.

3. On 04.07.2013, some members of State Advisory Board for Development of Kishan Sarpanch Halqa Sohanjana, Jammu lodged a complaint to Superintendent of Police, Jammu alleging inter alia that petitioner-company is involved in distributing plants of Teak Sagwan in huge quantity at the cost of Rs. 100/- each to the farmers of Jammu by cheating them as all the plants had perished after their plantation in their respective fields by the farmers. It was also averred in the complaint that farmers of some areas of the district had demonstrated against the accused-company. Two salesman of the company were caught and handed-over to the police who lodged them in Police Station, Bishnah but no action was initiated against them nor any FIR was lodged against the company. It is on the basis of this complaint made to the Superintendent of Police that impugned FIR came to be registered against the petitioner.

4. The petitioner has questioned the impugned FIR primarily on the ground that allegations made in the impugned FIR, taken at their face value, do not disclose the commission of offence under Section 420 RPC. According to the petitioner, private respondents purchased few plants from the petitioner-company and plantation failed due to their own negligence and petitioner-company never deceived or fraudulently or dishonestly induced respondents No. 3 to 6 to cultivate the plants. It is also contention of the petitioner that dispute, if any, between the petitioner and private respondents is purely of civil nature, but impugned FIR has been lodged with a malafide intention for settlement of civil dispute, which is not permissible in law.

5. Heard arguments and perused the file.

6. Mr. Sachin Gupta, learned counsel appearing for the petitioner has reiterated the grounds urged in the petition and has relied upon Ajay Mitra v. State of M.P. and Ors; 2003 (3) SCC 11 , Brajo Sunder v. State of Maharastra and Anr. [Criminal Application No. 1692 of 2006 dated 09.09.2008] of Bombay High Court and a judgment passed by this Court in P.K. Aggarwal and Ors v. M/S Kapahi Construction Company and Anr. [CRMC No. 388/2015 dated 01.09.2021.]

7. Ex adverso, Mr. P.D. Singh, learned Dy. AG has defended the impugned FIR by contending that since the petitioner-company supplied inferior quality of plants to the farmers of J&K, therefore, it had fraudulent intention to deceive private respondents right from the inception.

8. Petitioner is alleged to have cheated the farmers-private respondents, within the meaning of Section 420 RPC, which reads as below:-

“420. Cheating and dishonestly inducing delivery of property

Whoever cheats and thereby dishonestly induces the person deceives to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable to being converted into a valuable security shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

9. It is manifest from a plain reading of the aforesaid provision that to held a person guilty of cheating, the investigating agency is obliged to show that he had a dishonest intention at the time he induced the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of the valuable security etc. In other words, the investigating agency or the prosecuting agency, as the case may be, is obliged to show the existence of dishonest intention right from the inception when a person alleged to be deceived is induced to deliver the property etc.

10. I am fortified in my opinion by an observation made by Hon’ble Supreme Court in Hari Prasad Chamaria v. Bishun Kumar Surekha & ors.; AIR 1974 SC 301. Relevant excerpt of the judgment reads as below:

“Unless the complaint showed that the accused had dishonest or fraudulent intention at the time the complainant parted with the money it would not amount to an offence under Section 420 Indian Penal Code and it may only amount to breach of contract……..”

11. A similar observation has been made by the Apex Court in G.V. Rao v. L.H.V. Prasad & Ors.; 2000 (2) RCR (Crl.) 290 (SC), whereby it was held that in order to constitute the offence of cheating the intention to deceive should be in existence at the time when the inducement was offered.

12. Reverting to the present case, the allegation against the petitioner is that it has distributed large quantity of teak sapling to the farmers of Jammu by cheating, as all the saplings/plants distributed by the petitioner perished after their plantation by the farmers in their respective fields. It is pertinent to mention that saplings were distributed to the farmers at a cost of Rs. 100/- each and a perusal of receipt issued by the petitioner-company, annexed with the present petition, clearly reveals that saplings were provided to the farmers on various terms and conditions and one of the conditions is that petitioner-company in no way would be responsible for fluctuation of growth and yield of crop, since the growth and yield of crop depends on quality and suitability of soil, water and cultivation practices. Therefore, the fact remains that the teak saplings/ plants, in the present case, were purchased by the complainant party, with their eyes wide open, subject to the terms and conditions, embodied in the invoices issued to them at the time of sale.

13. It is a matter of common experience that a plant or a sapling may perish due to multiple factors. It may be damaged with the intervention of weather. It may also be affected due to quality of soil or inadequate supply of water. Negligence on the part of a farmer may also contribute for the destruction of a plant. Be that as it may, the fact situation of the present case would make it explicit that private respondents have lodged the impugned FIR without specific material to infer the existence of dishonest intention on the part of the petitioner-accused from the inception. It is ostensible from the recitals of the impugned FIR that an attempt has been made by the respondents to convert a purely civil dispute into a criminal offence, which is not permissible in law.

14. It is trite that criminal prosecution cannot be used as an instrument of oppression to settle private vendetta. From the conspectus of the whole case, suffice it to say that the recitals of the FIR in question do not bring on surface of the record any substratum to infer existence of dishonest intention on the part of the petitioner-company at the inception of the transaction between it and the private respondents.

15. Having regard to the aforesaid, the present petition is allowed and impugned FIR is quashed.

Petition allowed.

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