Final Order 1

Order Details: Order Below EX 1
Pdf Text: CNR No. MHMM18-001707-2023 C. C. No. 55/MISC./2023.
The American School of Bombay
V/s. Gary & Ors.
ORDER BELOW EXH.1
Read the complaint. Perused the documents filed alongwith
the complaint. Perused the verification statement of complainant, which is
at (Exh.-2). Heard Ld. Advocate Shri Aditya Mithe for complainant.
2. According to the complainant it is the American School of
Bombay and it is best international school in Mumbai offering education
from pre kinder garden to 12 grade. The accused have taken admissions of
their children but they did not pay the school fees. It is contended that,
accused since inception have intention to defrarud the complainant by non
paying the school fees fo their children.
3. Mr. Gerard Basco Coutinho in his verification statement stated
that, accused failed to pay the school fees since January 2019 to till 2022
and approximately Rs. one crore school fee outstanding with accused and
they failed to fulfill their promise.
4. Ld. Advocate Shri Mithe for complainant submits that,
accused have made false representation and assured to pay fees of their
child. Despite of several e-mails no fees paid by the accused. Accused were
having knowledge that, they could not afford the school fees and despite
of that they have taken admission of their child in the school and failed to
pay scchol fees. Therefore, they have cheated complainant school.
5. In support of his arguments he relied on case of Mohd.
Ibrahim and Ors. Vs/ State of Bihar reported in 2009 SCC online SC 1594
wherein Hon’ble Apex court held that,
civil dispute in some cases may also
contains ingredients of criminal offences and such disputes have to be
enterained not withstanding they are also civil dispute.
6. The complainant has filed the complaint under section 420 of
the Indian Penal Code. In order to constitute an offence it must be shown
that, accused had fradulant or dishonest intention at the time of making
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representation or promise and such a culpable intention right at the time
of entering into an agreement cannot be presumed merely from, which
failure to keep the promise subsequently. In short mere breach of contract
does not amount to an offence of cheating unless fradulant or dishonest
intention is shown to exist from the begening of the transaction.
7. From the allegations made in the complaint it appears that,
the accused have failed to fulfill their promise to pay the school fees. The
allegations in the complaint and the contention in the verification
statement does not shows that, since inception accused had intention to
cheat the complainant. Therefore, in this case there is missing of
important ingredents of cheating that, since inception accused had
intention to cheat the complainant. Further, the dispute is of purely civil
nature, therefore, I am of opinion that, no
prima-facie case made out by
the complainant.
8. So far as, the facts of the cited case law and present case are
all together different therefore, the said citation is not at all applicable to
present case. No offence
prima-faciely made out against accused,
therefore, I proceed to pass following order.
ORDER
The complaint is dismissed under section 203 of Code
of Criminal Procedure.
Mumbai.
Date : 19/07/2024.
SRD.
Sd/-
(A. B. Jadhav)
Metropolitan/Judicial Magistrate,
(First Class) 71st Court, Bandra, Mumbai.
Dictated on :- 19/07/2024.
Transcribed on :- 19/07/2024.
Checked on :- 19/07/2024.
Signed on :- 19/07/2024.
SRD
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