Court No. - 34
Case :- APPLICATION U/S 482 No. - 1226 of 2003 Applicant :- Mubarak Ali And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rishikesh Tripathi Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Rishikesh Tripathi, learned counsel for applicants and learned AGA for State of U.P.
2. Applicants have invoked inherent 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 summoning order dated 16.11.2002 as well as entire proceedings of Case No. 3080/IX of 2002 arisen from Case Crime No. 162 of 2002, under Sections 120-
B, 420, 424, 427, 471, 418 IPC, pending in the Court of Chief Judicial Magistrate, Banda.
3. It is contended that vague allegations have been made in FIR in which Police submitted charge-sheet and therein an interim order was passed by Commissioner in a civil litigation under Section 229-B of U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as “Act, 1950”) and in violation of said interim order, sale- deed was executed. It is submitted that if entire allegation of FIR, which has been reiterated by police in investigation, is taken to be correct, no offence under aforesaid sections is made out. Entire FIR reads as under:-
^^izHkkjh fujh{kd dksrokyh uxj ckankA fuosnu gS fd vkjkth [kljk ua0 567] 568] 569 fLFkr xzke lknh enuiqj o uEcj 252 o 253 fLFkr xzke ykeSj ckxj ijxuk o ftyk ckank ds laca/k ea eq0ua0 117@96 cnj vyh cuke eaq'kh vyh gLo nQk 220 ch-t-fo- vf/k- U;k;ky; vflLVsUV dysDVj ckank esa fopkjk/khu gS] ftleas izkFkhZ ds firk us gLo nQk 229 Mh t-fo-vf/k0 dh nj[okLr nh Fkh tks fujLr gqbZA blds ckn izkFkhZ ds firk us ekuuh; vk;qDr egksn; fp=dwV /kke e.My ckank ds U;k;ky; eas fuxjkuh la0 241@97&98 nk;j dh ftlesa fnukda 5&4&99 dks vij vk;qDr egksn; us izkFkhZ ds firk dh mDr fuxjkuh Lohdkj djrs gq, Lfkxu vkns'k bl vk'k; dk ikfjr fd;k fd LoRo dk fookn gLo nQk 229 ch- t-fo- vf/k- yfEcr jgus rd ntZ [kkrsnkjku foi{khx.k eqyfteku fookfnr Hkwfe dk gLrkUrj.k ugha djasxs ijUrq ekuuh; vk;qDr egksn; }kjk fookfnr Hkw[k.Mksa ds gLrkUrj.k ij yxs jksd ds ckotwn foi{khx.k eqyfte eqckjd vyh oYn 'kgtkn vyh fuoklh Qsykuh Fkkuk iSykuh ftyk ckank esa xkVk la0 253 fLFkr xzke rksej ckaxj dk jftLV~h cSukek fnukad 9&7&99 dks cgd Jherh jQhdwfUu'kk mQZ Hkwjh iRuh fj;ktqy glu fuoklh lknhiqj dks dj fn;k gS rFkk blh izdkj Jherh 'kQhdwfUulka csok eqerkt o tCckn vyh oYn benkn vyh lkfdu iSykuh Fkkuk iSykuh us fookfnr vkjkth ua0 252 fLFkr xzke rksej ckaxj dks Jherh [kyhdqfUu'kk mijksDr us xkVk la0 568 fLFkr xzke lknhenuiqj dks [kyhdqfUu'kk ds i{k esa rFkk tCckn vyh us xkVk la0 569 fLFkr xzke lknhenuiqj dks fnukad 9&7&99 dks cgd Jherh [kyhdqfUulka iRuh bdjkevyh fuoklh lknhioqj ijxuk o ftyk ckank ds gd eas nkSjku eqdnek ,oa mDr Lfkxu vkns'k ds ckotwn fd;k x;k gSA bl izdkj vk;qDr U;k;ky; }kjk fookfnr Hkw[k.Mksa eas gLrkUrj.k jkds s tkus ds ckotnw ntZ [kkrsnkjku }kjk fu"ks/kkKk vkns'k ds rF; dks fNikrs gq, tku cw> dj bl Kku ds lkfk fdlh O;fDr dks lnks"k gkfu gks ldrh gS fodz; vfHkys[k dks dwVjfpr djrs gq, fodz; vfHkys[k rS;kj dj fookfnr Hkw[k.Mksa dk fodz; "kM;U= o'k fd;k x;k ,oa fookfnr Hkw[k.M dk gLrkUrj.k fodz; vfHkys[k rS;kj djds diV djus ,oa lafonk djus dh n`f"V ls blds Hjkw[k.Mkas ds fuLrkj.k dk i;z kl fd;k x;k gSA ekuuh; vij vk;qDr ds vkns'k o cSukek [kkl dh izfdz;k layXu gSA vr% izkFkZuk gS fd fjiksVZ ntZ voxZ o /kkjk 120 ch] 418] 420] 423] 424] 471 vkbZ- ih-lh- vk>kSyh djds eqyfteku okyk ds f[kykQ dkuwuh dk;Zokgh djus dh d`ik dh tk,A izkFkhZ rb;c vyh iq= cnjvyh lk0 lknh enuiqj ij0 o ftyk ckank fnukad 26&3&2002** “Incharge Inspector, Kotwali Nagar, Banda. It is requested that case no 117/96 Badar Ali versus Munshi Ali u/s 220B of the Zamindari Abolition Act in respect of araji khasra no 567, 568, 569 situated in Village Sadi Madanpur and nos. 252 and 253 situated in Village Lamair Bagar, Paragana and District Banda is pending in the court of Asstt Collector, Banda wherein applicant's father had submitted an application u/s 229D Zamindari Abolition Act which was rejected. Thereafter, applicant’s father filed Revision no 241/97-98 in the court of Hon'ble Commissioner, Chitrakoot Division, Banda wherein admitting the aforesaid revision of the applicant's father, the Additional Commissioner granted stay to the effect that till the pendency of the title dispute u/s 229B of the Zamindari Abolition Act, the respondents/accused mentioned as khatedaars shall not transfer the disputed land. But despite the stay order granted by the Hon'ble Commissioner, respondent/accused Mubarak Ali s/o Shahjad Ali r/o Felani, P.S. Pailani, Distt Banda has executed registered deed of gata no 253 situated in Village Tomar Bangar on 9.7.99 in favour of Smt Rafikunnisha alias Bhuri w/o Riyajul Hasan r/o Sadipur and in respect of disputed araji no 252 situated in Village Tomar Bangar, Smt Safikkunisha widow of Mumtaj and Jabbad Ali s/o Imdad Ali r/o Pailani, P.S. Pailani have executed deeds, respectively, of gata no 568 situated in Village Sadi Madanpur and gata no 569 situated in Village Sadi Madanpur in favour of aforesaid Smt Khalikunnisha w/o Ikram Ali r/o Sadipur, Pargana and Distt Banda, despite there being the aforesaid stay order and during the pendency of the case. Thus, despite there being order of the Court of Commissioner restraining transfer of the disputed plots, the khatedaars deliberately concealing the injunction order and with an intent to cause wrongful loss, conspiratorially sold the disputed plots by forging sale papers and attempted to dispose off these disputed plots by preparing transfer/ sale papers and also to execute an agreement. The copies of the order of the Honourable Additional Commissioner and sale-deed are annexed. Hence, it is requested that registering the report under section 120B, 418, 420, 423, 424, 471 IPC, legal action may please be taken against the accused. Applicant Taiyab Ali s/o Badar Ali r/o Sadi Madanpur, Pargana and Distt Banda. Dated 26.3.2002”
(English Translation by Court)
4. A bare perusal of aforesaid FIR clearly shows that there was an interim order and in violation thereof, sale-deed has been executed in respect of disputed plot. At best, in case of violation of order passed by Authority concerned but that by itself does not attract offences under aforesaid sections. Ingredients therein are totally different. I do not find that ingredients of Sections 120-B, 420, 424, 427, 471, 418 I.P.C. are made out and Court below, in my view, has clearly erred in law in summoning accused persons under aforesaid sections.
5. 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.”
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. Section 471 IPC talks of use of forged document and reads as under:-
“471. Using as genuine a forged document or electronic record .—Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.”
20. Since the substantive offences are not made out, Sections 120-B, 418, 424, 427 IPC are also not attracted.
21. In view of discussions made hereinabove and considering the allegations contained in the FIR in the case in hand in the light of above authorities, the impugned order cannot be sustained.
22. Application is allowed. Impugned order dated 16.11.2002 as well as entire proceedings of Case No. 3080/IX of 2002 arisen from Case Crime No. 162 of 2002, under Sections 120-B, 420, 424, 427, 471, 418 IPC, pending in the Court of Chief Judicial Magistrate, Banda, are hereby set aside.
Order Date :- 27.11.2019 Siddhant Sahu