Suit for cheting/fraud
P.C. Joshi
(Querist) 25 February 2010
This query is : Resolved
Dear Friends,
Pls advise me on the following qury.
A ltd has supplied certain goods to ABC a proprietorship concern during the year 2007-08 and an amount of Rs 18 lacs is overdue from ABC. The proprietor of ABC was some Mrs X who expired in Nov 2007 and his sons have now taken over the business. In fact at the time of supplies by A Ltd also their mother was proprietor only for name sake the busisness was being managed by sons only.
ABC is not aking payment to A ltd for which A Ltd is undoubtedly file a civil recovery suit. But A ltd is insisting on filing an FIR for cheating and fraud and file a criminal suit.
On the basis of above facts learned members are requted to share their views on the maintainability of a criminal suit in the matter and under which sections of IPC.
Regards
P.c. Joshi
Parveen Kr. Aggarwal
(Expert) 26 February 2010
In case, it is proved that the sons of Mrs. X had actively participated in the transactions of sale and with dishonest intention then, offence of cheating can be said to have been committed by them. Section 415 of the Indian Penal Code, 1860 defines cheating as: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. A dishonest concealment of facts is deception within the meaning of this section."
Raj Kumar Makkad
(Expert) 26 February 2010
It is difficult to be agree with parveen on this matter. Commercial transactions and rendition of accounts or recovery of balance amount of accounts is purely a civil matter and only suit for recovery or rendition of account petition is liable to be filed in the given case and no criminal law is attracted even if the legal heirs of ABC refuse to make the payment to A.
Sanjeev Panda
(Expert) 26 February 2010
I think a criminal case is made out. If the complainant can prove that the proprietorship was managed by the sons and her mother was proprietor only for name sake and it is the sons with whom the complainant dealt with. The complainant have to prove that the sons have approached them for supply of goods and the sons made false representation to the complainants and their intention from the very begining was to cheat the complainant and they by false representation induced the complainants to deliever the goods to ABC, proprietorship concern.
