Legal Advice

Quashing of FIR against the travel agent

Question: In 2018, I arranged a tour booking for a family to the USA through an agent in the USA. However, due to a medical issue faced by one of the travellers, they requested to postpone the trip. Subsequently, the COVID-19 lockdown occurred, further delaying their travel plans. In 2020, when they expressed a desire to proceed with the tour, I was unable to contact the USA agent. I assured the travellers that I would organise the tour once I secured the necessary funds. However, in 2022, a family member from their group filed a First Information Report (FIR) against me. I applied for bail in the sessions court, but it was rejected due to inadequate representation by my lawyer. Consequently, I approached the High Court and obtained interim relief. Unfortunately, I made an error by committing to repay the tour amount in instalments through an affidavit, which I was unable to fulfil. As a result, they vacated the interim bail in October 2023, and the case against me is ongoing. I believe that the case is being unjustly treated as a criminal offence when it is, in fact, a civil matter. I suspect that the opposing party exerted pressure on the police to escalate it to a criminal offence. I am currently facing difficulties as a result of this situation, and I am seeking assistance to have the case quashed in the High Court.

Advise

The possibility of quashing the FIR against the travel agent exists if the agent can prima facie demonstrate an absence of intent to deceive the customer. The absence of deception on the part of the travel agent constitutes strong grounds to establish that the ongoing criminal proceedings amount to an abuse of the court’s process. Therefore, in the interest of justice, the high court may quash such an FIR.

An FIR is typically filed when a cognizable offence has been committed by the accused. In your case, it appears that an offence of cheating, punishable under Section 420 of the IPC, is alleged. As per Section 415 of the Indian Penal Code, cheating involves deceiving another person with the intent to induce them to deliver property or valuable security, or to do or omit to do anything valuable. The essential elements of cheating under Section 415 IPC include:

  • Deception by the accused
  • Fraudulent or dishonest intention to induce the deceived person
  • Delivery of property or valuable security as a result of the deception
  • Causing damage or harm to the deceived person

For an act to constitute the offence of cheating, all these elements must be satisfied.

In your case, there appears to be no intention to deceive the customer (complainant). The postponement of the tour due to a medical issue with one of the customers and the subsequent disruption caused by the COVID-19 pandemic led to challenges in arranging the tour. 

As there was no deception involved, no offence can be established against you. The failure to fulfil the contract can be considered a breach of contract, which is purely a civil wrong.

Criminal proceedings cannot be initiated solely for breach of contract. The Supreme Court, in the case of Usha Chakraborty & Anr. v. State of West Bengal & Anr 2023, has held that

criminal proceedings may be quashed under Section 482 of the Criminal Procedure Code, 1973 (CrPC) when the dispute is essentially of a civil nature and is used as a means of harassment.

It is important to exercise caution and discretion in exercising jurisdiction under Section 482 Cr.P.C. to ensure that it serves the ends of justice and prevents the abuse of the legal process.

Usha Chakraborty

In Bhajan Lal’s case the Supreme Court has also held that an FIR may be quashed if the matter attracts civil dispute. Hence, you should file a petition before the high court under Section 482 crpc for the quashing of the FIR. In absence of criminal intention to deceive the complainant the high court may quash this FIR.

Shivendra Pratap Singh

Advocate

High Court Lucknow