Court No. - 34
Case :- APPLICATION U/S 482 No. - 4691 of 2005 Applicant :- Sri S. Ravi Krishna And Others Opposite Party :- State Of U.P And Another Counsel for Applicant :- M.L. Jain, Raghuvansh Misra Counsel for Opposite Party :- Govt. Advocate, Amit Mishra, Viresh Mishra
Hon'ble Sudhir Agarwal,J.
1. Heard Sri G.S. Chaturvedi and Sri Navin Sinha, learned Senior Advocates assisted by Sri Raghuvansh Misra, learned counsel for applicants and learned A.G.A. for State of U.P.
2. This application under Section 482 Cr.P.C. has been filed praying for quashing summoning order dated 25.01.2005 as well as further proceedings of Complaint dated 17.12.2004 registered as Case No. 402 of 2005, under Section 420 IPC, pending before Court of Additional Chief Judicial Magistrate, Agra.
3. The contents of complaint read as under :-
^^1- ;g fd izkFkhZ @ vfHk;ksxh esllZ vej [kkn Hk.Mkj ds uke ls vkxjk eas [ksrh ls lacf/kr [kkn cht cspus dk dkjksckj djrk gSA izkFkhZ @ vfHk;ksxh bl dkjksckj dks yxhkx 45 o"kZ ls djrk vk jgk gSA
2- ;g fd izkFkhZ @ vfHk;ksxh dk bl O;kikfjd {ks= ea dkQh vPNh izfr"Bk gSA
3- ;g fd foi{Khx.k ih0,p0vkbZ0lhM~l fy0 ds uke ls Hkkjr eas cht fuekZ.k o fcdzh dk dkjksckj djrh gS bldk dk;kZy; y[kuÅ] fnYyh] gSnjkckn vU; 'kgjksa eas gSA rFkk foi{kh @ vfhk;ksxh @ izkFkhZ ds lEidZ eas vk;s vkSj crk;k fd ge ih0,p0vkbZ0 lhM~l fy0 ds uke ls nqfu;k eas cht fuekZ.k o fcdzh dk O;kikj djrs gSa vkxjk 'kgj eas viuh izfr"Bk dks ns[krs g;q s ge vkids }kjk viuk eky cspuk pkgrs gSa gekjh o vkidh tks 'krsZ gksxh og eatwj gksxhA
4- ;g fd izkFkhZ @ vfHk;ksxh us crk;k fd gekjh lg;ksxh QeZ Hkjriqj eas vej ,.M dEiuh ds uke ls Hkh gS vkSj eFkqjk esa Hkh ge dkjksckj djrs gSA gekjk djhc ,d djksM 25 yk[k :i;k izfro"kZ dh [kir gS nksuska i{kkas ds e/;
O;kikfjd le>kSrk gksdj lEcU/k cu x;s vkSj dkQh le; rd laca/k eFkqj jgs fdUrq twu 2004 esa foi{khx.k dh uh;r [kjkc gks tkus ds dkj.k cktjs dk cht iyZ ehYM&7688 foi{khx.k ds }kjk tks Hkstk x;k Fkk og lkjk iqjkuk Fkk ftls vfHk;ksxh us vius xzkgdksa dks cspk vkSj ml cht ls cktjs dh Qly ugha mxh rFkk lHkh xzkgdkas us izkFkhZ @ vfHk;kxhs ls Qly u mxus dh f'kdk;r dh vkSj crk;k fd cht iqjkuk gksus ds dkj.k mitkÅ xq.koRrk [kks pqdk Fkk ftlds dkj.k Qly ugha mxh vkSj izkFkhZ @ vfHk;ksxh dh O;kikfjd izfr"Bk ij xyr vlj iM+k izkFkhZ @ vfHk;ksxh dks viuh izfr"Bk ns[krs gq;s lHkh xzkgdksa dks ml [kjkc cht ds ckny svU; dEiuh ls u;k cht eaxkdj nsuk iM+k ftlls izkFkhZ dks djhc 80 yk[k :i;k vkfFkZd {kfr gqbZA
5- ;g fd vfHk;ksxh @ izkFkhZ us vius lHkh xzkgdkas dh f'kd;rksa dh Nk;kizfr ds lkFk ,d bZ esy fnukad 2 tqykbZ 2003 dks foi{khx.k dks Hkstk ftl ij foi{khx.k us Qksu ij ckrphr djus ij viuh xyrh dks Lohdkj fd;k fdUrq foi{khx.k us ihfM+r fdlkukas dks dksbZ Hkh {kfrifrZw ugha dh izkFkhZ @ vfHk;ksxh us bl lEcU/k eas nwljk Le`fr i= fnukda 8 tqykbZ 2003 dks {k=h;s izcU/kd ih0lh0vkbZ0 lhM~l y[kuÅ dks Mkd }kjk HkstkA
6- ;g fd izkFkhZ @ vfHk;ksxh us foi{kh ls dkQh f'kdk;r i= fy[kus ds ckn foi{khx.k us tkap djus gsrq nsok'kh"k feJk ,xzksuksfeLV vkSj Jh ih0ih0flag ekdsZfVax vkQhlj vkxjk dks Hkstk ftUgkasus tkap ds nkSjku uku tfeZfus'ku ¼uk miyus okys½ dh ?kVuk dks lR; o lgh ik;k izkFkhZ @ vfHk;ksxh us djhc 55800-00 fdyksxzke [kjhnk Fkk tks mlus vius [kqnjk fodzsrk o fdlkukas dks cps k Fkk tc fdlkuksa dh Qly ugha mxh rks fdlkukas us vfHk;ksxh @ izkFkhZ ls {kfriwfrZ ikus gsrq U;k;ky; eas tkus dh /kedh nh o cht dh ykxr dk 10 xquk {kfriwfrZ dh ekax dh ;g izkFkhZ @ vfHk;ksxh dh dEiuh ds fy;s xaHkhj ekeyk Fkk blds fy;s ftEesnkj dkSu gSA fdlkukas o fodzsrkvkas dks dEiuh ds eky ij cgqr fo'okl Fkk D;kasfd dEiuh bl O;kikj dks yxHkx 30 o"kZ ls djrh vk jgh FkhA bu ckrksa dh vksj /;ku vkfdf"kZr djrs gq;s ,d f'kdk;rh i= fnukad 2&8&03 dks fy[kk fdUrq mlds ckn Hkh foi{khx.k us dksbZ dk;Zokgh fdlkuska dks ns[krs gq;s ugha dh rFkk vfHk;ksxh @ izkFkhZ us iqu% 16-8-03 dks ,d f'kdk;rh i= fn0 2-8-03 dk gokyk nssrs gq;s rFkk fdlkukas i= ds lkFk Hksth x;hA }kjk dh x;h f'kdk;rkas dh Nk;kizfr Hkh
7- ;g fd foi{khx.k ds {ks=h; izcU/kd y[kuÅ }kjk fnukad 22-8-03 dks ,d i= bl vk'k; ls fy[kk x;k fd ge bldh tkap dj tYnh ls tYnh djkdj vko';d dk;Zokgh djasxsA fdUrq fo'okl fnykrs jgs vkSj dksbZ {kfriwfrZ ugha dhA foi{khx.k us fdlkuska o xzkgdkas ds lkFk fo'okl?kkr fd;kA
8- ;g fd izkFkhZ @ vfHk;ksxh us foi{kh dks pkj fjDr psd tks fd foi{khx.k ds ikl izfrHkwfr ds :i esa fn;s x;s Fks tks fd foi{khx.k us fookn dk fuLrkj.k u djrs gq;s fjDr cSad dks dze'k% 4]52170 :i;k fnukad 18-3-04@& fnukad 18- 3-04] 10709 :i;k fnukad 18-3-04 0 758843@& :i;k 18-3-04 dks izkFkhZ @ vfHk;ksxh dks voxr fd;s fcuk mijksDr /kujkf'k o frfFk Hkjdj hkqxrku gsrq viuh cSad eas izLrqr dj fn;kA tcfd vfHk;kxhs izkFkhZ us ml [kkrs dks cna djus dh lwpuk foi{khx.k dks fnukad 15-12-2003 dks i= }kjk ns nh Fkh tcfd fnukad 18-3-04 dks dEiuh dk dksbZ :i;k izkFkhZ vfHk;ksxh dh rjQ ckdh ugha FkhA
9- ;g fd vfHk;qDrx.k @ foi{khx.k us ,d er gksdj izkFkhZ @ vfHk;ksxh ds lkFk /kks[kk djus dh uh;r ls cktjs dk cht xyr fn;k x;k ftlls izfr"Bk dks Bsl igaqWph vkSj O;kikfjd gkfu gqbZ o vkfFkZd {kfr gq;h rFkk izkFkhZ @ vfHk;ksxh dks {kfriwfrZ dk vk'oklu nssrs jgs ij {kfriwfrZ u nsdj /kks[kk fn;k rFkk vfHk;ksxh dk djhc 80 yk[k :i;k vfHk;qDrx.k us /kks[kkM+h djds gM+i fy;k gSA vr% Jheku~ th ls izkFkZuk gS fd vfHk;qDrx.k @ foi{khx.k dks ctfj;s okj.V ryc djus dk vkns'k djus dh d`ik djasA** “1. That the applicant/complainant under the name of Messrs Amar Khad Bhandar runs the business of selling farm-seeds and fertilizers in Agra. The applicant/complainant has been doing this business for around 45 years.
2. That the applicant/complainant holds a good reputation in the business circles.
3. That the opposite party does the business of seed production and sale under the name 'PHI Seeds Ltd, the offices of which are at Lucknow, Delhi, Hyderabad and other cities. They came in the contact with the complainant/applicant and stated that they are in this trade all across the world and that they, considering the applicant's reputation in Agra city, wanted to sell their products through the applicant and they would be fulfilling their respective conditions.
4. That the applicant/complainant stated that its associate Firm 'Amar and Company' is in Bharatpur too; and they do business at Mathura as well. The applicant's Firm has annual consumption to the tune of Rs. 1.25 crore/year. Having entered into a trade agreement, both the sides developed good relations which continued for quite some time; but in June 2004, the opposite party with mala-fide intention supplied old seeds of millet 'Pearl Mealed - 7688' to the Firm; which the complainant sold to its customers. The seeds, so sold, did not yield any crop and customers complained against it, as the seeds, being old, had lost its productivity. This affected the business reputation of the applicant/complainant. To maintain its reputation, the Firm, having obtained seeds from another company, had to give them out to its customers; which caused a financial loss to the tune of Rs. 80 lakh to the Firm.
5. That the complainant/applicant sent an e-mail to the opposite parties on 02.07.2003 with photocopies of the complaints from all the customers. On this, the opposite parties, while taking over phone, admitted their mistake but they did not compensate the affected farmers. In this connection, the applicant/ complainant sent second reminder by post to the Regional Manager, PCI Seeds, Lucknow on 08.07.2003.
6. After several complaint letters by the applicant/ complainant to the opposite parties, they sent Shri Devashish Mishra, Agronomist and Shri P.P. Singh, Marketing Officer, Agra for inquiry. During inquiry, they found the complaint of non-germination to be true and correct. The applicant/complainant had purchased the around 55800.00 kilograms thereof which she had sold to retail sellers and farmers. When the crops of the farmers failed to grow, they (farmers) threatened to sue the applicant/ complainant in court for compensation, and demanded compensation 10 times as much as the cost of the seeds. This was a serious matter for applicant's/ complainant's company as to who was responsible for this. The farmers and sellers had a lot of trust on company's product because it had been carrying on this business for around 30 years. A complaint letter dated was written on 02.08.2003 drawing attention towards all these facts but even after this, the opposite parties did not take any action in view of the grievances of the farmers. Referring to the complaint letter dated 02.08.2003, the complainant again wrote a letter dated 16.08.2003 annexing therewith photocopies of the complaints submitted by the farmers.
7. That a letter was written by the Regional Manager, Lucknow on behalf of the opposite parties assuring that they would take necessary action after going for an inquiry at the earliest. But they kept on assuring and did not pay any compensation. The opposite party betrayed the farmers and the customers.
8. That the applicant/complainant gave four blank cheques to the opposite parties in the shape of sureties. The opposite parties, instead of settling the dispute, dated the blank cheques with 18.03.2004 and filled them up with amounts of Rs 4,52,170, Rs 10,709/- and Rs 7,58,843/- and presented them in the bank without bringing it into applicant/ complainant's knowledge. The complainant/ applicant had vide his letter no 15.12.2003 informed the opposite parties regarding the account being closed, whereas there was no outstanding amount of the company with the applicant/ complainant.
9. That the accused/ opposite parties, of one volition, supplied millet seeds of poor quality with an intent to play deception on the applicant/ complainant, thereby damaging the reputation and causing business and financial loss. They continued to give assurances to the applicant/ complainant but committed fraud with them by making no payment of compensation. The accused by committing fraud have grabbed about 80 lakh rupees of the complainant. Hence, sir, it is requested that an order may please be passed summoning the accused/ opposite parties.”
(English Translation by Court)
4. From the perusal of entire complaint, I find that ingredients of Section 420 IPC are not at all attracted/ satisfied in the case in hand.
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.
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. “Criminal breach of trust” talks of entrustment of property and dishonest misappropriation or conversion thereof for own use or dishonest use or disposal of property in violation of any direction of law prescribing mode in which property in which such trust is to be discharged, or of any legal contract by a person who has contravened the said provision.
20. In view of discussions made hereinabove and considering the allegations contained in the complaint in the light of above authorities, proceedings are liable to be quashed.
21. The application is allowed. Impugned summoning order dated 25.01.2005 as well as further proceedings of Complaint dated 17.12.2004 registered as Case No. 402 of 2005, under Section 420 IPC, pending before Court of Additional Chief Judicial Magistrate, Agra, are hereby quashed.
Order Date :- 29.11.2019 Siddhant Sahu