Oral Judgment

1. The present Revision Application has been preferred by the petitioners, challenging the Order passed by the learned Additional Chief Judicial Magistrate, Anjar-Kutch in Criminal Case No. 584 of 2012 vide Order dated 08.02.2016, whereby the learned Magistrate rejected the application below Exh.17 seeking discharge. The petitioners are aggrieved by the said Order and further by the subsequent Order dated 02.03.2023 passed below Exh.112/C framing the charge against them. Hence, the present Revision Application is preferred before this Court.

2. The brief facts giving rise to the present Revision Application are that the complainant, Anilbhai s/o Vashrambhai Savadiya, lodged a complaint against the present petitioners-accused alleging, inter alia, that the petitioners had placed two purchase Orders dated 14.11.2011 and 21.11.2011 with the complainant's company for purchase of 293 metric tonnes of TMT steel Bars, against which they had given ten cheques amounting to Rs.1.19 Crores. Accordingly, the complainant had delivered the goods on various dates in November 2011. Thereafter, the cheques given by the petitioners were presented in the Bank by the complainant, however all the ten cheques had returned dishonoured with the endorsement 'insufficient balance'. It was further alleged that since the petitioners-accused had not paid the amount of cheques and committed cheating and breach of trust, the complainant had filed complaints under Section 138 of the Negotiable Instruments Act. Subsequently, a complaint/FIR came to be registered before the Anjar Police Station vide I-C.R. No. 8 of 2012 for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. Pursuant to registration of the FIR, investigation was carried out and, upon completion of investigation, the Investigating Officer filed a charge-sheet on 03.05.2012 before the learned trial Court, which came to be registered as Criminal Case No.584 of 2012. In the said criminal case, the present petitioners preferred an application below Exh.17 under Section 239 of the Code of Criminal Procedure seeking discharge. The learned Additional Chief Judicial Magistrate, Anjar-Kutch, vide Order dated 08.02.2016, rejected the said discharge application. Being aggrieved and dissatisfied with the aforesaid Order rejecting the discharge application, the present Revision Application is preferred under Section 397 read with Section 401 of the Code of Criminal Procedure before this Court.

3. It is pertinent to note that the aforesaid Criminal Revision Application was initially rejected by this Court vide Order dated 24.03.2021, mainly on the ground that the Order rejecting the discharge application was an Interlocutory Order as per Section 397(2) of the Code of Criminal Procedure, 1973, and therefore the revision application was held to be not maintainable. The said Order of rejection was thereafter challenged by the present petitioner before the Hon'ble Apex Court of India by preferring Criminal Appeal No.5430 of 2024 (arising out of SLP (Criminal) No. 5300 of 2021). The Hon'ble Apex Court, vide Order dated 18.12.2024, was pleased to set aside the Order passed by this Court in Criminal Revision Application No.213 of 2016 and directed that the said revision application be restored and listed before the appropriate Bench. It is further submitted that during the pendency of the present revision application, the learned trial Court framed charges against the accused persons vide Exh.112/C on 02.03.2023 for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. In view thereof, liberty was granted to the present petitioner to seek amendment of the revision application so as to incorporate a challenge to the Order framing charge. Pursuant to the restoration of the present revision application, a draft amendment was moved by the learned advocate for the petitioner, and the same has been allowed.

4. Submission made by the learned advocate Mr.Jay M. Thakkar appearing for the applicants submitted that the petitioner has challenged the Order dated 08.02.2016 passed below Exh.17 in Criminal Case No.584 of 2012, whereby the learned trial Court rejected the discharge application preferred by the present petitioner. He has further submitted that during the pendency of the present revision application, charges came to be framed and, pursuant to liberty granted by this Hon'ble Apex Court, an amendment application was preferred and the same has been allowed. Learned advocate for the applicants submitted that as per the charge-sheet, the allegations against the present petitioner - original accused are that the petitioner purchased goods (iron rods) from the complainant company amounting to Rs. 1,19,25,656/-. It is alleged that towards the said outstanding dues, the petitioner issued blank cheques with an assurance that the same would be honoured upon presentation. However, when the cheques were presented by the complainant company, they were dishonoured on account of insufficient funds. It is further alleged that despite issuance of notice under Section 138 of the Negotiable Instruments Act, the amount remained unpaid. According to the prosecution, the accused purchased goods against validly issued cheques, assured that the cheques would be honoured, but ultimately failed to make payment after selling the goods and receiving consideration, thereby committing offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. Learned advocate has further submitted that the complainant has suppressed material facts in the FIR, particularly that the present applicants and the complainant company had business relations since the year 2008 and had entered into approximately 46 business transactions. It is further submitted that the complainant had filed ten separate complaints under Section 138 of the Negotiable Instruments Act for dishonour of cheques, including Criminal Complaint Nos.1723 of 2012 to 1732 of 2012 before the learned Judicial Magistrate First Class, Ahmedabad (Rural) Court. However, the said complaints were returned by the concerned Court in view of the judgment of the Hon'ble Apex Court in the case of Dashrath Rupsingh Rathod v. State of Maharashtra, directing filing before the Court having jurisdiction. It is submitted that thereafter the original complainant did not represent the complaints before the competent Court. As such, at present, no complaint under Section 138 of the Negotiable Instruments Act is pending against the present applicants-accused.

5. Learned advocate for the applicants further submits that the allegations made by the prosecution against the present applicants pertain to the offences punishable under Sections 406 and 420 of the Indian Penal Code. It is submitted that the dispute between the parties is purely civil in nature. Mere non-payment or underpayment of the price of goods, by itself, does not amount to commission of an offence of cheating or criminal breach of trust. It is further submitted that there is no act of inducement or entrustment alleged against the present applicants, nor is there any allegation that the applicants had any intention to cheat the complainant from the very inception of the transaction. Learned advocate further submits that the present applicants and respondent No. 2 - original complainant have been in a business relationship since the year 2008 and have entered into approximately 46 business transactions for sale and purchase since then. Therefore, it cannot be said that there was any intention on the part of the applicants to cheat the complainant from the inception. Further, learned advocate Mr.Thakkar has relied upon the Judgment of the Hon'ble Apex Court in the case of Veer Prakash Sharma v. Anil Kumar Agrawal & Anr., reported in 2007 (3) GLH 182, and has submitted that as per the ratio laid down by the Hon'ble Apex Court, in the absence of any act of entrustment or inducement on the part of the accused and in the absence of any allegation that the accused had the intention to cheat the respondent - original complainant from the very inception of the transaction, the provisions of Sections 406, 409, 420 and 417 of the Indian Penal Code would not be attracted.

6. Further, learned advocate Mr.Thakkar has placed reliance upon the Judgment of the Hon'ble Apex Court in Lalitbhai Bhanubhai Limbasia v. State of Gujarat & Anr., reported in 2004 (4) GLR 3233. In support of his submissions, reliance is also placed upon the Judgment of this Hon'ble Court in the case of Yogesh Premjibhai Suvariya v. State of Gujarat, rendered in Criminal Misc. Application No.13233 of 2012 vide Order dated 11.05.2018, wherein it has been held that no offence under Sections 406 and 420 of the Indian Penal Code is made out. Lastly, learned advocate Mr.Thakkar has heavily relied upon the Judgment of the Hon'ble Apex Court in the case of Shailesh Kumar Singh Alias Shailesh R. Singh v. State of Uttar Pradesh & Ors., reported in 2025 INSC 869, as well as upon the Judgment of the Hon'ble Apex Court in Delhi Race Club (1940) Limited Vs. State of Uttar Pradesh, reported in (2024) 10 SCC 690. It is submitted that, as per the ratio laid down by the Hon'ble Apex Court, Sections 406 and 420 of the Indian Penal Code cannot go together as there being a clear distinction between the offences of criminal breach of trust and cheating. It has been held that every breach of trust would not necessarily amount to criminal breach of trust, and that in cases arising out of commercial transactions, including sale of goods, criminal liability cannot be fastened in absence of essential ingredients of the respective offences. Therefore, both Sections 406 and 420 of Indian Penal Code cannot be invoked together in a routine or mechanical manner. Placing reliance upon the aforesaid judgments, it is submitted that the present Revision Application is required to be allowed and the Order passed by the learned trial Court, rejecting the discharge application, be quashed and set aside and consequently, the charge framed against the present applicants-accused under Sections 406, 420 and 114 of the Indian Penal Code is also required to be quashed and set aside.

7. On the other hand, learned Assistant Public Prosecutor Mr.Dhawan Jayswal has submitted that sufficient evidence have been found against the present applicants during the course of investigation. As per the case of the prosecution, the present applicants-accused sold the goods and misappropriated the sale proceeds and not a single penny was paid to the complainant. It is further submitted that the statements of transporters and other business persons, to whom the goods were delivered by the accused, have been recorded by the investigating agency. From the said statements, it is established that the accused received payment from the various vendors but, failed to remit the amount to the complainant, thereby dishonestly misappropriated the same. The learned Assistant Public Prosecutor has therefore submitted that the Order passed by the learned trial Court rejecting the discharge application is just and proper and does not require any interference. It is further submitted that the scope of revisional jurisdiction under Section 397 of the Code of Criminal Procedure is very limited and unless there is manifest illegality or perversity, this Court ought not to interfere with the same. In view of the aforesaid submissions, it is urged that the present Revision Application deserves to be dismissed.

8. Learned advocate Mr.Anuj K. Trivedi appearing for the respondent has submitted that, after registration of the FIR and completion of investigation, the charge-sheet has been filed against the present applicants-accused for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. It is submitted that in the present case, the property of respondent No. 2 - original complainant was entrusted to the applicants-accused pursuant to a legal contract. In breach of the said contractual obligation, the applicants sold the goods to third parties, unjustly enriched himself, and willfully chose not to remit the sale proceeds to the complainant. It is, therefore, submitted that the present applicants have dishonestly misappropriated the sale proceeds and converted the property to his own use in violation of the legal contract, thereby prima facie attracted the offence under Section 406 of the Indian Penal Code. It is further submitted that a bare reading of the FIR as well as the statements of the witnesses, it clearly establishes, that the complainant was induced by the applicants to deliver the property on the basis of false assurances and promises. It is submitted that the applicants intentionally received the goods under false promises, and had such assurances not been made, the complainant would not have delivered the property. Thus, according to the respondent, ingredients of Section 420 of the Indian Penal Code are also made out. It is further submitted that both the applicants are brothers and were actively involved in the transactions with the original complainant. Being fully aware of the acts committed, they have jointly participated in the alleged offences as stated in the FIR. It is further submitted that the revisional jurisdiction of this Court is very limited. Unless the Order passed by the learned trial Court is shown to be manifestly illegal or perverse, the same does not warrant interference. It is submitted that while deciding a discharge application, the learned trial Court is required only to examine whether sufficient material is produced along with the Charge-sheet to proceed against the accused or not. It is also pointed out that during the pendency of the present Revision Application, charges have already been framed against the applicants under Sections 406, 420 and 114 of the Indian Penal Code. Therefore, at this stage, no interference is called for in the impugned Order.

9. In view of the aforesaid submissions, it is urged that the present Revision Application is devoid of merits and deserves to be dismissed.

10. Heard the rival submissions of the learned advocates for the respective parties and perused the impugned Order passed by the learned trial Court. At this stage, it would be apt to refer to the observations made by the Hon'ble Apex Court in the case of Amit Kapoor and Another Vs. Ramesh Chander and Another, reported in (2012) 9 SCC 460. The relevant observations made in paragraphs 8 and 9 of the said judgment read as under:

          "8. .......Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or Order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the Orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

          9. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory Order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie......"

11. Considering the above dictum of the Hon'ble Apex Court, it is crystal clear that, so far as the jurisdiction under Section 397 of the Code of Criminal Procedure is concerned, the scope of interference and exercise of jurisdiction under the said provision is extremely limited. Unless the decision under challenge is grossly erroneous, or there is non-compliance with the provisions of law, or the findings recorded by the learned trial Court are based on no evidence, or material evidence has been ignored, in that circumstances only the Court can exercise revisional jurisdiction under Section 397 of the Code of Criminal Procedure.

12. In the present Revision Application, the Order under challenge is the rejection of the discharge application and the subsequent framing of charge against the applicants. Hence, the present Revision Application has been preferred.

13. So far as the facts of the present case are concerned, as per the case of the prosecution, an FIR came to be registered against the present applicants vide I-C.R. No. 8 of 2012 before Anjar Police Station, Kutch, for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code on 07.01.2012. Pursuant to the registration of the said offence, the investigation was carried out and, upon completion of the investigation, the Investigating Officer filed Charge-sheet before the competent Court. The said Charge-sheet was thereafter registered as Criminal Case No. 584 of 2012. In the said proceedings, the present applicants - original accused preferred an application under Section 239 of the Code of Criminal Procedure at Exh.17 seeking discharge from the alleged offences. However, the said application came to be rejected by the learned trial Court vide Order dated 08.02.2016, which is under challenge in the present Revision Application. It further appears that during the pendency of the present Revision Application, the learned Trial Court framed charge against the present applicants vide Exh.112/C for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code on 02.03.2023, and the said Order of framing charge is also under challenge in the present proceedings.

14. So far as the case of the prosecution, in nutshell, is concerned, it is alleged that in the month of April 2011 both the applicants contacted the original complainant seeking to purchase TMT steel bars. The applicants introduced themselves as Directors of a company engaged in the business of steel rods and continued to make inquiries regarding the purchase. Subsequently, as per the FIR, one of the applicants visited the company of the complainant and requested a discount of Rs.4,200 per ton. However, the complainant refused to grant such a discount. Thereafter, the applicants again contacted the complainant and requested to purchase iron rods at a reasonable price. Pursuant thereto, the applicants initially placed a purchase Order through email for 225 metric tons of TMT steel bars. Thereafter, on 21.11.2011, a second purchase Order was placed through email for 68 metric tons. As per the terms agreed between the parties, the payment was required to be made by the accused within 20 days from the date of placing the first Order.

15. Further, as per the case of the prosecution, during the period from 15.11.2011 to 29.11.2011, the accused persons purchased iron rods from the complainant company which were transported through Vishwa Hind Logistic. The total value of the i1ron rods transported was Rs.1,1925,656/-. It is alleged that the said goods were transported by the accused persons through 10 different trucks. It is further the case of the prosecution that the accused persons issued post-dated cheques towards payment of the said goods. The complainant company deposited the said cheques in its bank account. In total, 10 cheques amounting to approximately Rs.1.19 crores were issued by the accused persons. However, when the cheques were presented for encashment, all the cheques were returned unpaid with the endorsement "Insufficient Funds." Thereafter, the present FIR came to be lodged. Further, during the course of investigation, it was revealed that the iron rods transported through the said ten trucks were sold by the accused persons to different purchaser-third party at different places. It has also been revealed that the accused persons received certain amounts from some of the said third party; however, the said amounts were not paid to the complainant company. Moreover, from the charge-sheet papers and the statements of witnesses, it transpires that the accused persons have received approximately Rs.19 lakhs and odd from different purchaser to whom the iron rods were sold. The statements of such purchasers were recorded by the Investigating Officer, wherein they have stated that they had made payment to the accused persons, but the accused persons failed to pay the said amount to the complainant company.

16. Further, the statement of the transporter has been recorded by the learned Trial Court, from which it transpires that the accused persons have not paid any amount to the transporter for the transportation of the iron rods. The transporter has stated that the iron rods were loaded from the complainant company and were subsequently, unloaded at different places as per the instructions of the accused persons and delivered to various purchasers.

17. So far as the main arguments advanced by the learned advocates for the applicants are concerned, it has been contended that, looking to the contents of the FIR, the dispute arises out of a purely business transaction between the parties. It is mainly argued that the complainant and the accused persons were engaged in business dealings since the year 2008, and that there had been prior transactions between them. Therefore, according to the applicants, the dispute is purely civil in nature and has been given a criminal colour. In this regard, it is pertinent to note that the statements of the workers have been recorded by the Investigating Agency. Further, in the statement recorded by the police, the complainant has stated that initially Hans Ispat Limited Company was owned by the Barnala Group, and its head office was situated at Muzaffarnagar. Subsequently, the said Hans Ispat Limited was purchased from the Barnala Group by Shailesh Bhandari and Mukesh Bhandari. Therefore, so far as any transactions prior to the said acquisition are concerned, the complainant has stated that he has no knowledge regarding the same. Further, at this stage it is also required to be considered that while deciding a discharge application, the Court is not required to consider the defence taken by the accused or any documentary evidence produced by them. The Court is only required to consider the material produced along with the charge-sheet, and on that basis the Court has to decide the discharge application. Though the learned advocate for the applicants has argued that there were prior transactions between the parties, no cogent material in support of such contention emerges from the charge-sheet papers. Moreover, it has been clarified in the further statement that Hans Ispat Limited was earlier owned by the Barnala Group and not by the present management. Therefore, the said argument advanced on behalf of the applicants cannot be accepted.

18. Further, another argument advanced by the learned advocate for the applicants is that in the present case charges have been framed against the accused persons under Sections 406 and 420 of the Indian Penal Code. It is submitted by the learned advocate for the applicants that the offences under Sections 406 and 420 Indian Penal Code cannot go together. In support of the said contention, reliance has been placed upon the judgment of the Hon'ble Apex Court in the case of Delhi Race Club (1940) Ltd.. v. State of Uttar Pradesh & Anr.

19. In the said Judgment, the Hon'ble Apex Court, while considering the facts of the case, has observed as under:

          "35. This Court in its decision in S.W. Palanitkar v. State of Bihar 22 expounded the difference in the ingredients required for constituting of an offence of criminal breach of trust (Section 406 IPC) vis-à-vis the offence of cheating (Section 420). The relevant observations read as under: (SCC p. 246, paras 9-10)

          "9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property; (ii) that person entrusted : (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (1) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.

          10. The ingredients of an offence of cheating are: (1) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."

          36. What can be discerned from the above is that the offences of criminal breach of trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients:

          In order to constitute a criminal breach of trust (Section 406 IPC) (1) There must be entrustment with person for property or dominion over the property, and (2) The person entrusted:

          (a) Dishonestly misappropriated or converted property to his own use, or

          (b) Dishonestly used or disposed of the property or wilfully suffers any other person so to do in violation of:

          (i) Any direction of law prescribing the method in which the trust is discharged; or

          (ii) Legal contract touching the discharge of trust (see: S.W. Palanitkar¹12).

          Similarly, in respect of an offence under Section 420 IPC, the essential ingredients are:

          (1) Deception of any person, either by making a false or misleading representation or by other action or by omission;

          (2) Fraudulently or dishonestly inducing any person to deliver any property, or (3) The consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit (see Harmanpreet Singh Ahluwalia v. State of Punjab).

          37. Further, in both the aforesaid sections, mens rea i.e. intention to defraud or the dishonest intention must be present, and in the case of cheating it must be there from the very beginning or inception

          39. Every act of breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts but, any breach of trust with a mens rea, gives rise to a criminal prosecution as well. It has been held in Hari Prasad Chamaria v. Bishun Kumar Surekha as under: (SCC p. 824, para 4)

          "4. We have heard Mr Maheshwari on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 of the Penal Code, 1860. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420 of the Penal Code, 1860. There is nothing in the complaint to show that the respondent had dishonest or fraudulent intention at the time the appellant parted with Rs 35,000. There is also nothing to indicate that the respondents induced the appellant to pay them Rs 35,000 by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating."

          40. To put it in other words, the case of cheating and dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, a person who comes into possession of the movable property and receives it legally, but illegally retains it or converts it to his own use against the terms of the contract, then the question is, in a case like this, whether the retention is with dishonest intention or not, whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case..

          41. The distinction between mere breach of contract and the offence of criminal breach of trust and cheating is a fine one. In case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a subsequent conduct, but for this, the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed. Therefore, it is this intention, which is the gist of the offence."

20. From the above dictum of the Hon'ble Apex Court, it is very clear that for an offence punishable under Section 406 of the Indian Penal Code can be said to have been committed, there must be an entrustment of property. Where there is merely a contract for sale and purchase of property for consideration, the property cannot be said to have been entrusted temporarily for a limited purpose or object. In the present case, there is nothing on record to indicate that the complainant had entrusted the property to the accused for any temporary period or for any limited purpose. The FIR also does not disclose that the property was given to the accused for use on behalf of the complainant. Therefore, looking to the charge-sheet and considering the above dictum of the Hon'ble Apex Court in the case of Delhi Race Club (1940) Ltd. (supra), prima facie the offence under Section 406 of the Indian Penal Code is not made out.

21. So far as Section 420 of the Indian Penal Code is concerned, it is an admitted position that during the short period from 15.11.2011 to 29.11.2011, i.e., a period of 14 days, only two purchase Orders were raised. It further appears that earlier also the accused had contacted the complainant in the month of April and at that time had requested to purchase iron rods at a discounted price, but the complainant refused to supply the iron rods at such discounted price. Subsequently, the iron rods were loaded from the complainant's company in about ten different trucks and were supplied to different purchasers in North India. Further, it also transpires from the charge-sheet papers that an amount of more than Rs.19 lakhs has already been received by the accused persons from different purchasers. It has also come on record from the statement of one of the purchasers, whose statement has been recorded by the police under Section 161 of the CrPC, that despite having received the amount from the different purchasers, the accused has not paid a single penny to the complainant. Therefore, the overall conduct of the accused is required to be considered, which prima facie indicates that the accused persons had put in place a specific plan and design to cheat the complainant. So far as the authorities relied upon by the learned advocate for the applicant are concerned, in those cases the facts reveal that either part payment had been made or initially payment had been made and subsequently, due to some financial crunch, the person was unable to clear the dues. In such circumstances, the argument that there was no intention from the very inception to cheat the complainant may be accepted. However, in the present case, the conduct of the accused itself indicates that the amount was received from different purchasers and yet no payment has been made to the complainant. Further, from the statement of the transporter, it also reveals that no payment has been made even to the transporter for transporting the said goods to the different purchasers. Therefore, considering these aspects, a clear case of cheating as defined under Section 415 of the Indian Penal Code, punishable under Section 420 of the Indian Penal Code, is made out.

22. Considering the above discussion, so far as the offence under Section 406 of the Indian Penal Code is concerned, the same is not made out against the accused persons. However, so far as the offence under Section 420 of the Indian Penal Code read with Section 114 of the Indian Penal Code is concerned, a prima facie case is made out against the accused persons. Therefore, the Order passed by the learned trial Court rejecting the discharge application requires to be modified to the extent that the present applicant-accused persons are discharged from the offence punishable under Section 406 of the Indian Penal Code. Resultantly, the charge is required to be altered and framed against the present applicant-accused persons only for the offence punishable under Section 420 read with Section 114 of the Indian Penal Code.

23. In view of the above directions, the present Revision Application is partly allowed. The present applicant is discharged from the offence punishable under Section 406 of the Indian Penal Code. However, the Order rejecting the discharge application qua the offence under Section 420 read with Section 114 of the Indian Penal Code is confirmed. The learned trial Court shall accordingly alter the charge and frame a modified charge against the accused persons for the offence punishable under Section 420 read with Section 114 of the Indian Penal Code.

24. With the aforesaid directions, the present Revision Application stands partly allowed. Rule is discharged.