ASIT DAS Vs. JAGADISH CHANDRA SAHA
LAWS(CAL)-1986-4-17
HIGH COURT OF CALCUTTA
Decided on April 11,1986

ASIT DAS Appellant
VERSUS
JAGADISH CHANDRA SAHA Respondents


Referred Judgements :-

MOTILAL V. THE KING [REFERRED TO]
ASAD AU V. ANAAWAR AU [REFERRED TO]
AMIR CHAND VS. LOK NATH [REFERRED TO]
DEVIA RAM VS. L RAM CHAND [REFERRED TO]



Cited Judgements :-

GAUTAM BANERJEE VS. STATE OF WEST BENGAL [LAWS(CAL)-2004-8-21] [REFERRED TO]
NEERAJ RAJ GARG VS. STATE OF RAJASTHAN [LAWS(RAJ)-1989-12-36] [REFERRED TO]


JUDGEMENT

S.S.Ganguly, J. - (1.)The opposite party lodged a complaint in the court of the learned Additional Chief Judicial Magistrate, Sealdah alleging that the present petitioner had induced him to pay to the petitioner 3,500/- by three cheques on his representation that he would effect some required repairs to his wifes house situated at 32, Gouribari Lane, that he did not do the promised repair work and that ultimately he denied receiving the money. On the self same facts as also adduced by the opposite party and his three witnesses the learned trying Magistrate has drawn a charge in two heads under section 403 and 420 of the Indian Penal Code. Hence, this revisionary application for quashing the charge and the entire proceedings. It is urged from the side of the petitioner that the facts alleged and established by evidence do not make out a case of criminal misappropriation of property (section 403) or cheating (section 420).
(2.)The opposite party says in his evidence before the learned Magistrate that the petitioner denied receiving the amount. But his two witnesses say otherwise. Jugal Kishore Ghosh (P.W. 3) says that when the opposite party demanded back the amount of Rs. 3, 500/ the petitioner finned up refused to pay back the amount and told the opposite party that he could do whatever he liked. Sudhir Saha (P.W. 4) says that the petitioner admitted receiving the money but refused to pay back the same. On evidence all that has been established is refusal on the part of the petitioner (1) to perform his part of the contract and (2) to repay the money had and received. The liability that arises in either case is civil in nature and the consequential right may be enforced only through the civil procedure. Neither breach of contract nor refusal to repay simpliciter gives rise to any criminal liability and even together they do not form the offence contemplated under section 403 of the Indian Penal Code, for, refusal to repay is not quite the same as dishonest misappropriation or the offence contemplated under section 420 of the Indian Penal Code for deceit by fraudulent or dishonest inducement cannot be inferred invariably from breach of contractor refusal to pay back money had and received, Amir Chand v. Lok Nath1, Motilal v. The King2, Devi Ram v. Ram Chand3, Asad Ali v. Anaswar A1i4. Whatever the offence given by the petitioner to the opposite party by his act or omission, it never became a criminal offence because the act or omission was not accompanied by criminal intention to cheat or misappropriate.
(3.)It must be concluded, therefore, that the act or omission complained of in this case however outrageous did not form the offence contemplated by section 403 or section 420 or any other section of the Indian Penal Code. In the circumstances stated the charge framed by the learned Magistrate In this case under the said two sections of the Indian Penal Code is hereby set aside and the proceeding of the case being case No. 502 of 1983 pending in the 2nd court of the Judicial Magistrate at Sealdah is hereby quashed.


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