Court No. - 34
Case :- APPLICATION U/S 482 No. - 2166 of 2003 Applicant :- Anand Prakash Garg Opposite Party :- Surendra Mittal And Another Counsel for Applicant :- Amit Kumar Srivastava,Nikhil Chaturvedi Counsel for Opposite Party :- Govt.Advocate,K.D. Triapthi
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Nikhil Chaturvedi, learned counsel for applicant and Shri K. D. Tripathi, learned counsel for opposite party.
2. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash further proceedings of Case No. 2205 of 2002 (Surendra Mittal versus Anand Prakash Garg), under Section 420 IPC, Police Station Lohamandi, District Agra pending before the Additional Chief Judicial Magistrate, Agra.
3. It is contended that a perusal of complaint and statement of the prosecution witnesses examined under Sections 200 and 202 Cr.P.C. do not show that applicant has any dishonest intention and offence under Section 420 IPC is not made out. Para 3 to 11 of the complaint read as under:
“3- ;g fd vfHk;qDrx.k dk ,d IykV xtkuu uxj yksgke.Mh vkxjk esa Fkk mls ;g ekywe Fkk fd izkFkhZ dks edku cuokus gsrq IykV dh vko';drk gSA
4- ;g fd vfHk;qDr djhc ,d o"kZ ls izkFkhZ dks csbZekuh dh uh;r ls izyksHku nsrk jgk Fkk fd og mldk xtkuu fLFkfr IykV ys ys ftls og ikfjokfjd o iqjkuh laca/kks dks /;ku esa j[kdj mls mfpr o lLrs ewY; ij ns nsxkA
5- ;g fd vfHk;qDr us izkFkhZ dks ;g Hkh fo'okl fnyk;k fd mDr IykV lkQ lq/kjk gS rFkk ml ij fdlh izdkj dh dksbZ ck/kk ugha gSA
6- ;g fd tc vfHk;qDr dk mDr IykV izkFkhZ dks ilUn vk x;k rks og [kjhnus o jftLV~h djkus gsrq rS;kj gks x;k ysfdu vfHk;qDr us Nyko diV ls if.Mrksa ds vuqlkj vHkh jftLV~h djkuk mfpr ugh gS dgdj jftLV~h dks Vky fn;k vkSj izkFkhZ dks lknk fy[kk i<+h djkus gsrq rS;kj dj fy;kA
7- ;g fd fnukad 7-1-2002 dks vfHk;qDr us vius diViw.kZ O;ogkj ls izkFkhZ dks fo'okl esa ysdj vkSj Hkfo"; eas fdlh Hkh vPNs fnu jftLV~h djkus dk cgkuk cukdj csbZekuh dh uh;r ls /kks[kk nsdj xtkuu uxj yksgkeaMh fLFkr IykV ua0 43 d 100 oxZxt dh ckor udn nks yk[k ipkl gtkj :i;k 2]50]000@& :i;k ysdj 100@& :i;k ds LVkEi isij ij ,d fodz; cU/k i= fy[k uksVjh ls rLnhd djkdj jkds'k dqekj rFkk fouksn dqekj ds le{k mijksDr :i;k izkIr dj fy;k rFkk gLrk{kj dj mDr nLrkost izkFkhZ ds gd esa fy[k fn;k vkSj iqu% tYnh jftLV~h djkus dk vk'oklu xokgksa ds le{k izkFkhZ dks fn;kA
8- ;g fd izkFkhZ us dbZ ckj vfHk;qDr ls feydj mDr IykV dh jftLV~h djkus ds fy, dgk ysfdu gj ckj vfHk;qDr izkFkhZ dks Vkyrk jgk vkSj vUr eas 25 ebZ dks vfHk;Drq us jftLV~h djkus ls bUdkj dj fn;kA
9- ;g fd fnukad 1-6-2002 dks izkFkhZ us vius vf/koDrk ds ek/;e ls jftLVMZ Mkd }kjk jftLV~h djkus dk dkuwuh uksfVl vfHk;qDr dks fn;k tks mls fey x;k ysfdu vfHk;qDr us u rks uksfVl dk tokc fn;k vkSj u gh jftLV~h djk;hA
10- ;g fd vf/kd tkudkjh djus ij izkFkhZ dks irk pyk fd fnukad 12- 6-2002 dks vfHk;qDr us ,d cM+h jde ysdj izkFkhZ dks /kks[kk nsdj mDr IykV dk 69 lky dk jftLVMZ iV~Vk vo/ks'k dqekj jkor ds gd eas dj fn;k ftldh ckor ftykf/kdkjh vkxjk ls vuqefr izkIr dh x;hA
11- ;g fd mijksDr lHkh rF;kas dks fNikdj vfHk;Dr us izkFkhZ ls 2]50]000@&:i;k IykV dh ckor izkFkhZ ls /kks[kk nsdj izkIr dj fy, ;fn mls bu lc ckrkas dh tkudkjh igys ls gkrhs rks og vfHk;Dr dks fcuk jftLV~h ds mDr :i;k ugha nsrkA vfHk;qDr dk izkjEHk ls gh mn~ns'; izkFkhZ ls 2]50]000@& :0 /kks[kk nsdj gM+ius dk FkkA”
“3. That accused had a plot at Gaganan Nagar Loha Mandi, Agra and he was aware that applicant was required a plot for construction of house.
4. That accused with bad intention was alluring applicant to purchase his plot situated at Gaganan Nagar stating that he will give him in a cheaper price considering the old family relation with him.
5. That accused had assured applicant that abovesaid plot is neat and clean and there is no obstacle and dispute in it.
6. That when applicant liked plot of accused and he became agree to purchase and to get registered aforesaid plot, the accused with malice intention has told him that according to Pandits, it is not a proper time to get plot registered and made applicant agreed for agreement on plain paper.
7. That on 7.1.2002 accused with his fraudulent behavior took applicant in confidence that on any auspicious day he will get plot no. 43 Ka (100 square feet) situated at Gaganan Nagar Loha Mandi registered and taken Rs. 2,50,000/- through Rs. 100/- stamp paper by writing a sale deed duly attested by Notary in presence of Rakesh Kumar and Vinod Kumar and after signing on sale deed in favour of applicant assured him to get the plot registered very soon.
8. That applicant had requested many times to get registered above said plot, but every time accused avoided and ultimately on 25th of May accused had denied to get plot registered.
9. That on 1.6.2002 applicant through his Advocate sent a legal notice by registered post to accused for getting plot registered in his favour which was received by accused but neither accused had replied notice nor get plot registered in favour of applicant.
10. That after information applicant came to know that on 12.6.2002 accused by cheating applicant had taken huge amount for aforesaid plot and get registered patta of 69 years in favour of Ashok Kumar Rawat for which permission was also obtained from District Magistrate, Agra.
11. That by concealing aforesaid fact, accused by deceiving applicant had taken Rs. 2,50,000/- from him regarding aforesaid plot. If applicant would have knowledge about aforesaid fraudulent act of accused, he would not have paid said amount to accused for registry of plot. From the very beginning intention of accused was to grab Rs. 2,50,000/- from applicant by deceiving him.”
(English translation by the Court)
4. The averments made in the complaint have been supported by oral deposition by the complainant in his statement under Section 200 Cr.P.C. and statements of PW 1 and PW 2 have been recorded under Section 202 Cr.P.C. Thereafter, Magistrate has summoned applicant.
5. Learned counsel for applicant has placed reliance on Supreme Court judgment in case of Vinod Natesan versus State of Kerala, (2019) 2 Supreme Court Cases 401, but same does not apply to facts of this case since it is a complaint case. Further said case was essentially of civil in nature and did not disclose elements of crime.
6. In case, when a dispute of civil nature has arisen in a case and there are sufficient ingredients of criminality also, the mere fact that it involves civil dispute also does not mean that criminality is excluded.
7. Section 420 is “cheating” which is defined in Section 415 and both these provisions read as under:
“415. Cheating.- 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 or 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 a deception within the meaning of this section.”
“420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
8. In order to attract allegations of “cheating”, following things must exist:
(i) deception of a person;
(ii) (A) fraudulent or dishonest inducement of that person,
(a) to deliver any property to any person; or,
(b) to consent that any person shall retain any property,
(B) intentional inducing that person to do or omit to do any thing,
(a) which he would not do or omit if he was not so deceived, and,
(b) such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. (Emphasis added)
9. Then in order to attract Section 420 I.P.C., essential ingredients are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
10. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
11. In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
12. In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
13. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, 2000(4) SCC 168 Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
14. In S.W. Palanitkar and others Vs. State of Bihar and another, 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
15. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
“Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which
the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.”
(Emphasis added)
16. In Devender Kumar Singla Vs. Baldev Krishan Singh 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
17. In Indian Oil Corporation Vs. NEPC India Ltd., 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
18. Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
19. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
20. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
21. In view of discussions made hereinabove and considering the allegations contained in the complaint as well as in the case in hand and in the light of above authorities, proceedings are not liable to be quashed.
22. Application is accordingly dismissed.
Order Date :- 30.9.2019 Ravi Prakash