1. This is a revision against the Judgment of the Sessions Judge, Visakhapatnam, was set aside an order of discharge under Sec. 253 of the Cr. P.C These proceeding arise out of a complaint for cheating filed by the respondent before the District Magistrate of Visakhapatnam. The complainant who is an Ayurvedic dactor practising at Visakhapatnam, appears to have been dabbling in crossword puzzle competitions. The organisers of R.M.D.C Crossword puzzle competition advertised a competition No. 258 offering prizes. This concern has a branch office at Visakhapatnam and there is also a collection agent, who is empowered to collect solutions for being despatched to the Head Office at Bangalore. The case of the complainant is that he got up a correct solution of the puzzle but that he could not send the form before the last date fixed for sending the coupons of solutions viz. 8th December, 1954. He said that he learnt on the 10th of Dec. 1954 from the collector of coupons at Visakhapatnam who is the third accused in the case that the last date for sending the coupons had been extended form the 8th Dec. to the 10th December. The complainant stated that finding that there was still time to send the coupon, he brought out the coupon already filled by him made out a fair copy of it and handed over the same with Rs. 2/- the entry fees to the collector of coupons and obtained a receipt from him. The allegation of the complainant is that the 3rd accused took away the entry form to the local branch of this company at Visakhaptanam. The Manager of the local branch is the 2nd accused in the case.

2. On the 12th December 1954 the “all correct solution” was published on the notice board of the branch office at Visakhapatnam. The case of the complainant is that the solution published tallied with the solution sent by him. He further says that the 2nd accused and the 3rd accused also congratulated him that he got an all correct solution. The complainant further stated that when he did not receive a confirmatory telegram from the Head office which was at Bangalore, confirming that his solution was correct, he sent a telegram on 14th December to Bangalore and also contacted over the telephone the Managing Director at Bangalore and asked him as to why he was not given intimation of the fact of his solution being a correct one. He says that he also sent a registered letter on the 15th December and a telegram on 16th December. The complainant's further averment is that after his repeatedly sending letters and telegrams, he received a letter from the 1st accused on the 6th January, 1955 to the effect that they had made a search among the coupons submitted by the Collector but did not find the coupon of the complainant and that they were further investigating the matter and would write to the complainant in due course. The prizes for the correct solution were distributed on 29th December, 1954 and the distribution of the prizes was published in a paper called the ‘Sporting Star’ dated 9th Jan, 1955. The complainant got a notice issued through his lawyer and when it was of no avail he filed a complaint against (1) the Managing Director of the R.M.D.C at Bangalore (2), the Branch Manager of the concern at Visakhapatnam and (3) the Collector of coupons at the same place. The charge against these was one under Sec. 420 I.P.C cheating and also under Sec. 204 I.P.C stating that the accused managed to destroy the documents in order that they may not be available for evidence. The accused pleaded not guilty and there was a further plea raised on behalf of the accused No. 1 saying that in so far as the offence under Sec. 204 was concerned, in as much as the allegation of the complainant was that the destruction of the documents was at the Head Office by accused No. 1 at Bangalore, the Court at Visakhapatnam could have no jurisdiction to try that offence. The two points that the Magistrate considered in the case were (a) whether the allegation in the complaint disclosed offences under Sec. 420 and 204 and (b) whether the court at Visakhapatnam had jurisdiction to try the offence under Sec. 204, I.P.C The District Magistrate recorded the statement of the complainant. He came to the conclusion that the facts alleged in the complaint did not disclose any criminal offence under Sec. 420 while with regard to the offence under Sec. 204 he held that although it disclosed an offence under the said section, he had no jurisdiction to try the same. On revision the Sessions Judge reversed the findings of the Magistrate and remanded the case for enquiry. It is this order that is being attacked in this revision.

3. The Order of the Magistrate purporting to act under Sub-Sec. 2 of Sec. 253, Cr. P.C is being attacked as illegal. The gist of the argument of the learned counsel for the respondent is that it was premature to have dismissed the complaint as being groundless and discharged the accused. It is urged that the complainant had given particulars in his complaint and in his sworn statement of materials which should have been looked into by the Magistrate before he came to the conclusion that there was no case made out for an offence under Sec. 420. Sec. 253(2) of the Cr. P.C as contrasted with sub-section (1) empowers the magistrate to discharge the accused at any stage of the case if he considers the charge to be groundless. Sub-section (1) says that if on taking all evidence referred to in Sec. 252, that is to say, (a) the statement of the complainant and (b) all such evidence that may be produced in support of the prosecution, the magistrate finds that no case has been made out to warrant a conviction, he shall discharge the accused. Sub-Section (1) gives the power to a magistrate to discharge the accused after recording the statement of the complainant and the evidence that may be produced in support of his complaint. Sub-Section (2) goes a step further and says that it is open to a magistrate to discharge the accused even without recording the evidence of the prosecution if he feels that the charge is groundless. The Sub-Section as is worded would make it clear that there is nothing to prevent the magistrate from taking the step of closing the case and discharging the accused immediately after the filing of the complaint if he feels that the charge is groundless.

4. The question that has to be decided is as to whether having regard to the particular facts and circumstances of the case the order of the Magistrate in discharging the accused as he did, after the filing of the complaint and recording the statement of the complainant, was Judicial and in accordance with law. It is abundently clear that where allegations, made by a complainant, taken at their face value and left unrebutted would constitute at best a ground for a civil suit, no criminal Court would go on with the case but would leave the matter to be agitated in a civil Court. The offence for which the accused have been charged is one under Sec. 420 I.P.C (cheating). In order to constitute an offence under this Section there should be a dishonest intention on the part of the accused which must precede or accompany the act of dishonesty. The mere breach of contract cannot give rise to a criminal prosecution Cheating amounts to inducing the victim to enter into a bargain which he would not enter into if he knew the real facts. The Supreme Court had to deal with a case under Sec. 420 I.P.C and their Lordships observed:

“Where the charge against the accused is under Sec. 420 I.P.C in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery, an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating”. Vide Mahadeo Pershad v. State of West Bengal A.I.R 1954 S.C 704

5. The allegations of the complainant in this case are that in response to an advertisement that certain prizes, would be awarded for correct solutions in a crossword competition, he filled up a coupon and delivered the same to accused No. 3 who was the collector for being forwarded to the Head Office at Bangalore and that it turned out that his solution was an all correct solution and the accused in this case suppressed his coupon and deprived him of the prize that he was entitled to. In these circumstances the question is whether an intention to defraud could be attributed to accused No. 1 or the other accused? There must be an element of personal gain to any of the accused and in order to gain that advantage if they defrauded the complainant then it could be said that the object was to gain the advantage at the cost of the complainant. It is well known that the 1st prize awarded for an all correct solution is distributed amongst all the persons who have got out a correct solution, that is to say, the total amount of the prize is divided amongst all the winners. The organiser therefore gains no advantage in depriving any one winner of his share of the 1st prize as he cannot retain any portion of the prize amount. In any event he has to pay out the total amount of the prizes and all the winners are entitled to share it. There could therefore be no intention at the inception on the part of any of the accused to defraud the complainant. It could not be said that the accused in this case wanted to benefit some prize winners at the cost of the complainant, for how could the accused know as to who would be the all correct winner? There is absolutely no allegation or insinuation in the complaint to say that the prize winner in this correct solution was one who knew the accused well or who was his friend and that he wanted to benefit him. It is, therefore abundantly clear that no intention to defraud could be held to have been there at the time when the solutions were called for. The question of suppressing the coupons subsequently also would not arise for, there must have been an object for doing so, viz., to benefit any one prize winner. The same argument would apply to the alleged attempt to suppress the coupon. I might in this connection refer to a case decided by the Calcutta High Court in Harendranath v. Jyotish Chandra A.I.R 1925 Cal. 100. It is well understood that where the allegations themselves would not under the law constitute an offence under Sec. 420 it is open to a magistrate to discharge the accused. It may be that in not sending the coupon accused 2 and 3 have committed a breach of contract, because under the rules relating to the running of the cross-word puzzle competition, the solutions have to be submitted to Bangalore, or it may be that the accused Nos. 2 and 3 having sent them, accused 1 has lost the coupon. In the latter case it would amount to negligence or omission which would entitle the complainant to an action for damages.

6. Then the question resolves itself to this, as to whether the magistrate had jurisdiction to discharge the accused on the ground that the charge was groundless. It could not be said that this action of the Magistrate was arbitrary. The words ‘at any stage’ occurring in Sec. 253(2) of the Cr. P.C have a particular significance. Any bar in the way of a magistrate discharging an accused before the whole evidence is placed before him is removed by Sec. 253(2) of the Code. This view receives support from the decision in Sunderdas Loghani v. Fardun Rustom Irani I.L.R (1939) I Cal. 474. It has been very succinctly stated by the learned Judges of the Madras High Court in Kasinatha v. Shanmugham, I.L.R (1929) 52 Mad. 987 , 57 M.L.J 490 that if on grounds to be recorded the Magistrate has come to the conclusion that the allegations disclose a dispute of a civil nature which is distorted into a criminal case, there is nothing to prevent him from discharging the accused before all the complainant's witnesses have been examined. The learned Sessions Judge, in his order has characterised the order of the magistrate as being premature and has stated that the Magistrate should have taken evidence and then decided the matter. I fear that the Sessions Judge has lost sight of the fact that the Criminal Procedure Code empowers the magistrate to dismiss a complaint as being groundless and discharge the accused at any stage. The only essential for such an order is that he should record his reasons for doing so and in this case the magistrate has done so. If the Sessions Judge's rule were to be accepted as correct, there would be no case of a discharge of the accused before taking evidence.

7. The other offence for which the accused have been charged is one under Sec. 204, I.P.C the allegation being that the accused Nos. 2 and 3 at Visakhapatnam or the accused 1 at Bangalore have deliberately suppressed the all correct solution coupon of the complainant in order that the evidence of the complainant having submitted an all correct solultion, may become unavailabe to the court. As regards this charge, in so far as it relates to accused 1 who is the Managing Director of the Crossword puzzle competition, admittedly the Magistrate at Visakhapatnam could have no jurisdiction to try the offence as accused No. 1 is residing at Bangalore and the act of suppression also, according to the complainant must have been at Bangalore alone. It was urged that the Visakhapatnam court would have jurisdiction to try the offence as against accused No. 2 and 3. I shall deal with this matter later.

8. In this connection it was also urged by the learned counsel for the respondent that it is nit always desirable that the accused should be allowed to raise a preliminary point before he is charged. Ramaswamy J. in the case of Innasian Pilli v. Perumall Chettiar, A.I.R 1953 Mad. 1008 , (1952) 2 M.L.J 706 was of the opinion that the accused person has no right to raise a preliminary point before he is charged and the learned Judge referred to a Circular of the High Court which said that by reason of preliminary points being raised and the court passing orders thereon and such order being carried in revision before the High Court, the trial of the case was being unnecessarily delayed. While this was the view held by Ramaswamy J., Somasundaram and Chandra Reddy, JJ. have taken a different view. They held that if the preliminary point is such that it goes to the root of the matter it could be raised at an early stage. I might advert to the decision of Somasundaram J. in the case of Dr. P.M Kamat, In re A.I.R 1954 Mad. 561. That was a case where the objection was to the very cognizance of the offence by the magistrate and this question, the learned judge held, was a question which could be raised at a preliminary stage and relied upon a Judgment of the same High Court in Parandhamayya v. Nagabhushanam A.I.R 1929 Mad. 579. Chandra Reddy, J. in In re. Nichodemus, A.I.R 1955 Mad. 561 held that an accused his the right to raise a preliminary objection to the maintainability of the complaint on the ground of limitation, jurisdiction or any other matter analogous to it and he dissented from the decision of Ramaswamy J. in the case referred to above. The learned Judge observed that in order to avoid unnecessary waste of time of the Court and of the litigant public, an accused could be allowed to raise a preliminary objection which goes to the root of the matter and the matter disposed of. I am in respectful agreement with Chandra Reddy and Somasundaram, JJ. in the view taken by the learned Judges in the cases referred to above.

9. Then the question that requires consideration is that even granting that the court at Visakhapatnam would have no jurisdiction to try the offence under Sec. 204 I.P.C in so far as accused No. 1 was concerned, there can be no objection to the trial of the offence so far as accused 2 and 3 were concerned. But the allegation of the complainant is, that the coupon that he entrusted to accused 3 was forwarded to the office at Bangalore and that the 1st accused was either suppressing it or secreting it with a view to cause wrongful loss to him. He therefore, is definite about it that the coupon which he entrusted to accused 3 was sent to the Bangalore Office and it is accused No. 1 who is suppressing it in order that evidence may not be available later on if that is the case, the act of suppression being that of accused No. 1 the case could not be tried by the magistrate at Visakhapatnam. My attention was drawn to Sec. 182 Cr. P.C and it was argued that where it was not certain in which of the several local areas the offence was committed it may be enquired into and tried by a Court haying jurisdiction over any such local area. Sec. 182 would not apply to this case, for there is a definite allegation by the complainant that the coupon was sent to Bangalore. I am, therefore, in agreement, with the Magistrate; that having regard to the statement of the complainant, it is only the court at Bangalore that would have jurisdiction to try the offence under Sec 204 I.P.C

10. In conclusion I hold that the allegations in the complaint are not enough to foist a criminal liability upon the accused and probably a good case may be said to have been made out for action on the civil side. I am in respectful agreement with Ramaawamy J, (as he then was) of the Patna High Court in the view taken by him in Mohd. Ainul Haqua v. Mohd. Yusuf Crl. R.G No. 476 of 1953 unreported. That was also a case under Sec. 420 and as stated by me in this Judgment the learned Judge also was not inclined to impute any intention to defraud the cross-word puzzle entrant, because there was no allegation of previous enmity between the entrant and the organiser of the Cross-word Puzzle.

11. For all the above reasons I am of the opinion that the order of the Sessions Judge reruanding the case to the Magistrate for further enquiry and rial cannot be sustained. The revision is allowed, the order of the Sessions Judge set aside and that of the Magistrate restored.

Ch. R.

12. Revision allowed.