Bombay High CourtJotumal Thakurdas Thawani vs O.P. Ralhan & Others on 12 January, 1999Equivalent citations: 1999(2)BOMCR691Author:Pratibha UpasaniBench:Pratibha UpasaniORDER
 

Dr. Mrs. Pratibha Upasani, J.1. This Criminal Revision Application No. 309 of 1990, which was later on converted into Writ Petition No. 372 of 1991, is filed by the petitioner (original complainant) against respondent Nos. 1 and 2 (original accused), being aggrieved by the order dated 27th July, 1990 passed by the learned Additional Sessions Judge, Greater Bombay. By his impugned order, the learned Additional Sessions Judge dismissed the revision preferred by the complainant Jotumal Thakurdas Thawani, whereby he was aggrieved by the order passed by the Additional Chief Metropolitan Magistrate, discharging the accused for the offence of cheating punishable undersection 420of the Indian Penal Code.2.         Few facts may be narrated, which are as follows:It was the case of the complainant before the Magistrate that his family consisting of 22 members was doing business of bankers and financers, and the financing was mainly restricted to production of films. Accused No. 1 O.P. Ralhan was a producer, actor, writer and director and the complainant Mr. Jotumal Thawani had financed Mr. Rajhan for his film 'Papi' some eight years before the filing of the complaint.3. The complainant has alleged that in August, 1980, accused No. 1 approached him for finance of his film 'Pyas'. An agreement was entered into between the complainant Mr. Jotumal Thawani and accused No. 1 on 12th of August, 1980 and in pursuance of that agreement, the complainant paid in all a sum of Rs. 24,64,000/- to the accused for the production of his film 'Pyas'. It was the term of the Agreement that whenever the complainant was to make the payment of the finance, the accused was to give him a postdated cheque towards the repayment of the amount, and if the accused could not arrange for the repayment, an option was given to him to take back this

cheque and issue a fresh post-dated cheque again at the time of the payment of further finance. Finally, the accused gave twenty-one cheques to the complainant towards the full repayment of the amount of loan. But when all these cheques were deposited by the complainant in his Bank, they were dishonoured. Moreover, the accused also failed to repay the amount.4. The complainant has also alleged that on 29th October, 1983, accused No. 1 approached the complainant and requested him to release the Delhi/ U.P. territory to him, so that, he could approach the Government for exempting the film from entertainment tax. He also represented to the complainant that he would be able to get lot of money by exhibiting the film in Delhi/U.P. territory, if exemption from the entertainment tax was granted to his film 'Pyas'. According to the complainant, relying on the representations made by accused No. 1, the complainant released Deihi/U.P. territory in favour of the accused by sending letter to the Bombay Film Laboratories Private Limited, Bombay. But he, later on, came to know that accused No. 1 had sold the distributing rights of the said territory to some other Company of Delhi for a sum of Rupees Seventeen Lakhs and had received Rupees Eight Lakhs as advance. It is the grievance of the complainant that inspite of getting this amount, the accused failed to repay the loan amount or any part of it, to the complainant. Therefore, it is the case of the complainant that the accused cheated him and committed an offence undersection 420of the Indian Penal Code, and complaint came to be filed by him on 23rd of May, 1984.5. The complainant had led evidence before charge for making out a prima-facie case against the accused, and examined himself and two more witnesses-Narayan Shetty Sooda, Special Assistant in Vijaya Bank, Mahim Branch, Bombay, and P. Sundaram, a Cashier from the Punjab National Bank. He also produced several documents. However, after considering the evidence and arguments of both the sides, the learned Chief Metropolitan Magistrate, 19th Court, Esplanade, Bombay, held that the transaction between the complainant and the accused was of a civil nature and it was merely a case of non-payment of loan, and therefore, discharged the accused.6. Against this order, being aggrieved, the complainant filed revision in the Sessions Court, which also came to be dismissed by the Additional Sessions Judge, by confirming the order of discharging the accused by the Additional Chief Metropolitan Magistrate. Being aggrieved by the same, the present Writ Petition has been filed.7. In this matter, initially, it appears from the proceedings that one Mr. C.K. Jaisinghani was appearing all throughout for the complainant. However, it was reported that he was no more, and therefore, Mr. T.K. Chandrashekhara Das, J., passed order dated 14th September, 1998, directing the Office to issue notice to the petitioner, which was returnable on 5th October, 1998. Accordingly, the petitioner was duly served with the Court Notice. There is a roznama dated 16th October, 1998 to that effect. Inspite of that, none appears for the petitioner. None appears for respondent Nos. 1 and 2. State i.e. respondent No. 3 is represented by Mr. S.R. Shinde, learned Additional Public Prosecutor, who assisted the Court.8. After hearing the learned Addl. Public Prosecutor, and after perusing the entire record, especially, the order passed by the learned Additional Chief

Metropolitan Magistrate dated 13th January, 1989, and the impugned order dated 27th July, 1990 passed by the learned Additional Sessions Judge, I am of the opinion that both the courts did not commit any error in discharging the accused. It is an admitted position that the complainant has filed two civil suits, one for Rs. 18,40,000/- and the other one for Rs. 6,24,000/-, against the accused, which are still pending. The transaction between the parties obviously appears to be a transaction of a civil nature, and there is also no question of making false representation by the accused. It is also an admitted fact that the complainant used to get interest in respect of the amount advanced by him regularly. In his cross-examination, the complainant has clearly stated that he has received three cheques for Rs. 30,000/- in all towards the interest and encashed them immediately. In fact, the evidence of the complainant before charge, shows that the complainant had no occassion to complain against the accused till 1984. There also does not appear to be any false representation, as far as request of releasing the Delhi/ U.P. territory is concerned, because the accused mortgaged overseas rights in lieu of Delhi/U.P. territory and got released the said film. Even the 21 cheques given by the accused to the complainant which were post-dated cheques, were not encashed by the complainant. In fact, the complainant did not try to encash them, but it appears that it was agreed between the parties that the accused would be entitled to get back those post-dated cheques in exchange of fresh cheques. In view of this fact, the observation of the learned Additional Sessions Judge that the mere dishonour of cheques after four years in 1984 did not amount to cheating, appears to be a correct observation.9. It is true that the same transaction may give rise to civil as well as criminal proceeding, however, as far as criminal proceedings are concerned, all the ingredients of that particular offence should be present. In the case at hand, no ingredient of the offence of cheating are apparent. If one applies the test and conditions as laid down for the definition of the word "cheating", it is difficult to come to the conclusion that there was any element of cheating at the time of entering into a contract or subsequently, and that, the accused persuaded the complainant to accept what was false to his knowledge and thereby induced him to deliver him the loan amount. None of the representations made by the accused and incorporated in the agreement, indicates that there was any fraud or dishonesty on the part of the accused. The Agreement between the parties was entered into with clear understanding and it is quite obvious that the complainant himself waived the material condition in the Agreement and therefore, he cannot say that he was cheated by the accused.10. In view of this discussion, it has to be said that the order of discharging the accused passed by the Additional Chief Metropolitan Magistrate, which was confirmed by the Additional Sessions Judge, was a correct order and no interference therefore is warranted.11. This writ petition is therefore devoid of any merit, and is dismissed as such. No order as to costs.12. Writ Petition dismissed.