Court No. - 34
Case :- CRIMINAL MISC. WRIT PETITION No. - 32510 of 2018 Petitioner :- Kuldeep Singh @ Kala Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajesh Kumar Kanojia Counsel for Respondent :- G.A.,Laxmi Kant Bhatt
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra, J.
1. Heard Sri Rajesh Kumar Kanojia, learned counsel for petitioner and learned A.G.A. for State-respondentas.
2. This writ petition under Article 226 of Constitution of India has been filed by petitioner seeking quashing of First Information Report dated 02.05.2018 registered as Case Crime No. 109 of 2018 under Sections 420, 406, 311, 504, 506 IPC, Police Station-Falawada, District- Meerut.
3. It is contended that reading of complaint does not make out offence under Sections 406, 420 IPC.
4. Copy of F.I.R. has been filed as Annexure-1 which reads as under :
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No. 680/91, Chamber No. 3, Aram Gaha Building, Civil Court, Meerut. UksV& eS lh0lh0 2362 fot;iky flag izekf.kr djrk gwW fd izk0i= dh udy dEI;wVj ij d0vka0 ealwj vgen ls 'kCn o 'kCn cksy cksydj Vafdr djk;h x;h gSA* “Copy of the typed complaint (in Hindi) of the complainant: Court of ACJM, Meerut. Application No. 3/11/19 of 2018 : Bijendra Singh s/o Rajaram, aged around 47 years, r/o Village Gudamb, PS Flawada, District Meerut. Applicant/Complainant Vs. Kuldeep Singh @ Kala, s/o Mukund Singh, aged around 32 years, r/o Dhola, PS Dhola, District Sangrur, Punjab. Case u/s 420, 406, 311, 504, 506 IPC, PS Flawada, Meerut. Application u/s 156(3) Cr.P.C. The applicant/complainant submits 1. That the applicant/complainant is a resident of Village Gudamb, PS Flawada, District Meerut. The accused Kuldeep @ Kala is an old acquaintance of the applicant/complainant. He frequented applicant's/complainant's house over the past so many days. The applicant/complainant would rely too much on Kuldeep @ Kala. 2. That on 15.12.2017, the accused Kuldeep @ Kala came to the house of the applicant/complainant at Village Gudamb, PS Flawada, Meerut and informed him that he had a tractor made by Jodiar company worth around Rs. 5,50,000. He was in need of some money. Hence, he wanted to sell his tractor to meet his needs. Kuldeep @ Kala told the applicant/complainant that he would sell this tractor to him for Rs. 2,40,000/-. On this, the applicant/complainant entered into a deal with the accused for the said tractor. At that time, Pappu @ Sunil, s/o Rajaram and Satvir, s/o Chajjan, r/o Village Nasarpur, PS Mawana, Districrt Meerut were present at the spot. 3. That according to the deal for the tractor, the applicant/complainant, on 19.12.2017, transferred Rs. 1,10,000/- into the account of Kuldeep @ Kala through NEFT from his mother's account no. 14740010041688 held with Sathla Branch of Punjab National Bank, Meerut. On 19.12.2017, the applicant/complainant transferred Rs. 30,000 into the account of Kuldeep @ Kala through NEFT from his account no. 55680100002921 held with Flawada Branch of Bank of Baroda, Meerut. In this way, the applicant/complainant gave a total of Rs. 2,40,000/- to Kuldeep @ Kala for the tractor. Apart from Rs. 1,40,000/-, an amount of Rs. 1,00,000/- was paid to Kuldeep @ Kala in cash. 4. That when the applicant/complainant asked Kuldeep @ Kala for delivery of the tractor, he informed him that he would send the said tractor along with its papers through his servant in a day or two. The applicant/complainant believed the words of Kuldeep @ Kala and kept waiting for the tractor. When the tractor was not delivered even after passage of many days, the applicant/complainant contacted Kuldeep @ Kala. Kuldeep @ Kala kept avoiding with excuses. When the applicant/complainant inquired about the tractor, he came to know that Kuldeep @ Kala did not have any tractor. Kuldeep @ Kala had grabbed Rs. 2,40,000/- of the complainant/applicant and is not returning the same even on being demanded. Kuldeep @ Kala has duped Rs. 2,40,000/- of the applicant/complainant and he is threatening to kill him and is using filthy language against him. 5. That the applicant/complainant went to PS Flawada to submit a complaint. The policemen there advised him to solve the matter mutually and did not lodge his complaint. 6. That on 28.12.2017, the applicant/complainant sent applications to the SSP, Meerut and DIG, Meerut and SSP of Police, District Sangrur, Punjab but no action was taken. Hence, it is requested that the SHO, PS Flawada be directed to register the complaint of the applicant/complainant and take legal action against Kuldeep @ Kala. It will be so kind of you. Dated: 10.01.2016. Sd/- Bijendra Singh. Applicant/Complainant Bijendra Singh, s/o Rajaram, Village Gudamb, PS Flawada, District Meerut. Seal. Ompal Singh, Advocate, Naidu wale, Reg. No. 680/91, Chamber No. 3, Aram Gaha Building, Civil Court, Meerut. Note: I, CC, 2362, Vijay Pal Singh certify that the copy of the applicant has been got recorded on the computer word for word through Computer Operator Mansoor Ahmad.”
(English translation by Court)
5. Having gone through entire complaint, it is evident that ingredients of Section 420 I.P.C. is missing and no case for said offence is made out against petitioner.
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 de- ceived 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."
6. 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)
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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)
14. 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.
15. 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."
16. 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.
17. 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).
18. 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.
19. So far as Section 406 IPC is concerned, it provides punishment for “criminal breach of trust” which may be imprisonment for a term upto three years with fine or with both. The term “criminal breach of trust” is defined in Section 405 IPC, which reads as under:
“405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust.
Explanation 1.—A person, being an employer of an establishment whether exempted under Section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not, who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.—A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.”
20. The necessary ingredients to attract offence of “criminal breach of trust”, are:
(A) entrustment to any person with property or with any dominion over property;
(B) the person entrusted:
(I) dishonestly misappropriated or converts to his own use of that property;
(ii) dishonestly used or disposed of that property or wilfully suffers any person so to do in violation--
(a) of any direction of law prescribing the mode to which such trust is to be discharged;
(b) of any legal contract made touching the discharge ofsuch trust.
21. Learned A.G.A. despite repeated query could not show that aforesaid complaint discloses offences under Sections 406 and 420 IPC.
22. When we examine the facts of this case in the light of above discussion, we find that allegations contained therein do not satisfy ingredients of offences under Sections 406 and 420 IPC.
23. In view of discussions made herein above and considering the allegations contained in the complaint, in our view, cannot be sustained.
24. In the result, writ petition is allowed. First Information Report dated 02.05.2018 and all subsequent proceedings initiated pursuant thereto, are hereby quashed.
Order Date : 29.11.2019 Ashish Pd.