By this application, the applicant has put to challenge First Information Report No.6 of 2007 and charge-sheet case No. 257 of 2007 initiated at the instance of Registrar, District and Sessions Court, Nagpur, for the offences punishable under Sections 417, 420 and 511 of Indian Penal Code.
2.In response to the tender that was floated by the Registrar, District & Sessions Court, Nagpur, the applicant submitted his offer to supply 725 steel cupboards to the establishment of District & Sessions Court, Nagpur, each weighing 69-70 kgs. Accordingly, an agreement was entered into between the applicant and the Registrar of the District Court, Nagpur and clause 5 thereof reads thus:
"The seller has agreed to deliver the Steel Cupboards/Almirahs only after its inspection and approval as stated above within 30 days from the date of order."
3. It is the case of the prosecution that on 23.11.2006 the applicant attempted to supply two pieces of steel cupboards by approaching the Registrar of the District Court. The Registrar found that those two pieces of steel cupboard were weighing 60 kgs. only each. Therefore, the Registrar made a report to the District Judge about the same who, in turn, forfeited the earnest money deposit of the applicant and also ordered lodgement of first information report at police station against the applicant for cheating. Accordingly, first information report was lodged. After filing of the first information report, investigation was made and chargesheet has been filed and they are now under challenge before this Court in the present application.
4. Mr.Bhangde, learned counsel for the applicant, vehemently argued that the agreement was entered into on 19.10.2006 and clause 5 thereof indicate that the supply was to be made within thirty days from the date of placement of order by the District Court establishment. The applicant never received any order for quite sometime and therefore he approached the Registrar of the District Court and informed him that he did not receive any order and by then the rates of the steel in the market had gone up and therefore it would not be possible for him to supply the goods of the said weight, i.e. 69 to 70 kgs. per steel cupboard. He accordingly gave a letter to the District Judge. The cupboards sought to be supplied were admittedly only two since they were the sample subject to approval of the District Judge. Mr.Bhangde argued that the Hon'ble District Judge got annoyed and ordered filing of First Information Report against the applicant and ordered forfeiture of earnest money deposit of the applicant. He further argued that this order of forfeiture of earnest money deposit has not been put to challenge by the applicant nor he has any intention in future to file suit for recovery of the said money. Mr.Bhangde adversely commented on the attitude of the administration of District Court.
5. Per contra, Mr.Sonak, learned A.P.P. assisted by Mr.Gaikwad, Deputy Registrar, High Court, Nagpur, supported the impugned action and argued that the applicant attempted to supply the goods of inferior quality, i.e. each cupboard weighing 60 kgs., when actually he had agreed to supply the same weighing 69 to 70 kgs. and this is nothing but a cheating. Learned A.P.P. urged this Court to uphold the action against the applicant and prayed for dismissal of the application.
6. Mr.Gaikwad submitted that since the applicant did not supply the goods, the District Court administration was required to purchase it from Small Scale Industries and in that process incurred loss to the extent of more than five lacs.
7. It is seen that the agreement was entered into between the parties and clause 5 thereof took care of the interest of the District Court administration by providing thereunder the supply within 30 days from the date of order. There is nothing on record or in the charge-sheet to show that any order was placed in writing by the Registrar to the applicant. It was for the District Court administration to place order immediately after the agreement was entered into and get its goods. That never happened. When the applicant realized that the market rates in respect of the steel were rising up and he would not be in a position to supply the goods as agreed, he went to the District Court administration with two samples of cupboards with a request that it would not be possible for him to supply the cupboards of the agreed quality in view of escalation of steel prices but he would supply the cupboards weighing 60 kgs. Admittedly the applicant did not receive a single rupee from the District Court administration either by way of advance or part consideration and therefore no property of the Government was entrusted to him nor he had any dominion over the property of the Government so as to constitute the offence of cheating.
8. The allegation about attempt to cheat, if seen carefully, will show that there is no element of cheating since the applicant straightway wanted to convey that he could not supply the cupboards of the agreed quality in view of escalation of steel prices in the market. To say that the action of the applicant in attempting to supply two steel cupboards each weighing 60 kgs. would be attempted cheating would be too absurd since he did not come with total 725 steel cupboards of the weight of 60 kgs. each. There appears to be a total confusion in making haste in filing the first information report against the applicant by assuming that there was attempt to cheat the District Court administration. The submission by Mr.Gaikwad that loss to the extent of about Rs. Five lacs was caused because of the alleged attempt to commit offence by the applicant cannot be examined in these proceedings. The District Court administration was free to file suit for damages. However, no criminal offence is made out in the light of the above discussion, as is sought to be done. The District Court administration has admittedly forfeited the entire earnest money deposit of Rs. 50,000/- of the applicant and the applicant does not intend to recover the same from the District Court administration, as submitted by Mr.Bhangde.
9. In view of the above observations and looking to the facts and circumstances of the case, I have come to the conclusion that the allegations made against the applicant in the first information report as well as in the charge-sheet do not constitute any offence muchless the offence of attempted cheating. In the result, I make the following order.
10. Criminal application No. 228 of 2008 is allowed. Rule is made absolute in terms of prayer clause (i) of the application.