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1979 DIGILAW 284 (PAT)

Hare Krishna Sahay v. State of Bihar

1979-12-12

SHAMSHUL HASSAN

body1979
JUDGMENT SHAMSHUL HASSAN, J. 1. The petitioner in this application seeks their quashing of the order, dated 18.8.1979, by which charge has been framed against him and also the entire proceeding in the court of Judicial Magistrate, 1st class, Patna in GR. No. 963/76. Monghyr Town P.S. Case No. 43(8)76. By the aforesaid order dated 18.8.1979 charge has been framed under section 420 and 409 of the Indian Penal Code (hereinafter referred to as the Code). The petitioner admittedly is an agent for the sale of lottery tickets of the Government of Bihar. Though this fact has not been stated in the First Information Report, it has not been challenged by the petitioner. The sale for tickets for Bihar Lottery was governed by Government instructions, which were modified from time to time. The prosecution of the petitioner in this case relates to the 62nd draw. The Petitioner, it is alleged received tickets worth Rs. 33,364/- from the District Lottery Officer and paid the amount by two cheques being cheque no. HD/24- 255521 dated 8.11.1975 and BD/24-2555 dated 30.11.1975. On receipt of these cheque–the petitioner was handed over the tickets for the aforesaid draw. These cheques on presentation to the Bank were dishonoured. On the basis of the allegation to the First Information Report lodged on 31.8.1976 after investigation cognizance was taken and charge was framed. The First Information Report is as follows and needs to be cited in view of the points raised by the parties in this case. To The Officer Incharge Town P.S. Monghyr Sir, The Government letter no. BSL, 107/74-4714 dated 25th November 1974 of the Government of Bihar Lottery Department made it clear that the value of Lottery tickets may be accepted through cheques from the Agents. That for 62nd draw Monghyr District Lottery Office sold lottery tickets of a value of Rs. 33364/- to Shri H.K. Sahay of Hirapur Dhanbad against two cheques viz. HD/24-255521 dated 8.11.1975 for a sum of Rs. 27360/- and BD/24-2555 dated 30.11.1975 for a sum of Rs. 6004/-. That the aforesaid two cheques were sent to Bank of India, Petarhar through the local State Bank of India, Monghyr on 21.12.1975 and 17.12.1975 respectively. Shri H.K. Sahay Proprietor of State Lottery Agencies, Hirapur, Dhanbad, had no money in deposit in the Hank. Consequently the said cheques were dishonoured and the cheques were returned on 20.12.1975 and 1.1.1976 respectively. 6004/-. That the aforesaid two cheques were sent to Bank of India, Petarhar through the local State Bank of India, Monghyr on 21.12.1975 and 17.12.1975 respectively. Shri H.K. Sahay Proprietor of State Lottery Agencies, Hirapur, Dhanbad, had no money in deposit in the Hank. Consequently the said cheques were dishonoured and the cheques were returned on 20.12.1975 and 1.1.1976 respectively. That the District Lottery Officer, Monghyr informed the Director of Lottery Patna in the statement of accounts relating to 62nd 63rd and 64th draw of the office memo no. 211 dated 10.12.1975, 20 dated 25.2.1976 and 45 dated 24.3.1976 and also by letter no. 013 dated 14.2.1976 in reply to Director Letter No. 773 dated 31.1.1976 that a sum of Rs. 27164/- after deducting an amount of Rs. 6200/- already realised and adjusted against the previous total dues of Rs. 33364/- still remains out standing dues with Sri H.K. Sahay. That it may be mentioned that the Accountant District Lottery Office. Monghyr contacted Sri H.K. Sahay and his staff several times for payment of the outstanding dues. But the accountant could not realise any thing more than Rs. 6200/- as mentioned above. Sri H. K. Sahay and his staff continued to make promise to pay the outstanding dues of Rs. 27164/- but the same was not paid. That it is clear from the above said facts and circumstances that Shri H.K. Sahay and his associates by making fraudulent representation that they had cash in Deposit with State Bank of India Peter bar Branch and by issuing the said cheques dishonestly induced the then DLO Monghyr, Shri Nitya Ranjan Vasntiyar to deliver proper ties viz. Lottery Tickets of 53rd draw cheated the Director of Lottery and then made themselves punishable under section 406 and 409 I.P.C. It is, therefore prayed that the case may kindly be instituted against Shri H.K. Sahay and others and investigation may kindly be started against them and proper action may kindly by taken. Sd– Amranjan Pd. Singh District Accounts Officer Cum-District Lottery Officer, Monghyr. 2. Before I take up the matter I would like to point out the scope of this application as circumscribed by the Supreme Court in the case of Smt. Nagwa vs. Veeramma Shivalin Gappa Konjalgi & other, A.I.R. 1976 S.C. 1947. Sd– Amranjan Pd. Singh District Accounts Officer Cum-District Lottery Officer, Monghyr. 2. Before I take up the matter I would like to point out the scope of this application as circumscribed by the Supreme Court in the case of Smt. Nagwa vs. Veeramma Shivalin Gappa Konjalgi & other, A.I.R. 1976 S.C. 1947. It has been stated therein as follows:– "Thus it may be safely held that in the following cases and order of the Magistrate issuing process against the accused can be quashed or set aside. (1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. (2) Where the allegations made in the complaint arc patently absurd and inherently Improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where High Court can quash proceedings." 3. Learned Counsel for the petitioner relies on the first category of cases and has submitted that the allegation made in the first Information Report and the statement of witnesses, do not make out a case against the petitioner and the F.I.R. does not disclose the essential ingredients of any offence which has been alleged against him. He states that the prosecution should have sought his relief in the civil court. It has, therefore, to be examined whether any offence is made out in the F.I.R. and whether the essential Ingredients of the offence alleged has been disclosed and whether the dispute is of a civil nature. 4. The prosecution has framed charge under sections 406, 409 and 420 of the Code stated above. It has, therefore, to be examined whether any offence is made out in the F.I.R. and whether the essential Ingredients of the offence alleged has been disclosed and whether the dispute is of a civil nature. 4. The prosecution has framed charge under sections 406, 409 and 420 of the Code stated above. The learned Counsel for the State has strenuously pleaded the application of section 420 of the Code in the first instance and in the alternative, the application of sections 406 & 409 of the Code. The essential ingredients of the offence of cheating as laid down in section 415 is that there should be a fraudulent or dishonest inducement of a person leading to his being deceived. The person who, so deceived is by that deception induced to deliver any property to the person deceiving or to consent to the retention of the property by him, or the person deceived should be intentionally induced to do or omit to do any thing which be would not do if he was not so deceived and such acts should be one which causes or likely to cause damages or harm to the person induced in the body, mind, reputation and property. 5. On the facts as stated in the F.I.R. therefore, for the application of section 420 of the Code it has to be seen whether there was any initial inducement, which was dishonest and fraudulent, as a consequence to which the District Lottery Officer was induced to deliver the tickets and receipt of cheques which were dishonoured. 6. From the F.I.R. the following facts emerges:– By Government letter mentioned in the F.I.R. the department has been authorised to accept the payment for the value of lottery tickets by cheques from the agent. The petitioner gave two cheques of the value mentioned above. According to the F.I.R. quoted above, on presentation these cheques were dishonoured. Information was sent to the District Lottery Officer and on repeated demands a sum of Rs. 6200/- was paid to the department by the petitioner and Rs. 27,164/- is still due. It is also stated therein that from the above transaction on facts and circumstances it emerges that the petitioner and his associates made fraudulent representation that the had cash in deposit with the State Bank of India Petitioner Branch and by issuing the cheques induced the District Lottery Officer to deliver the tickets. 27,164/- is still due. It is also stated therein that from the above transaction on facts and circumstances it emerges that the petitioner and his associates made fraudulent representation that the had cash in deposit with the State Bank of India Petitioner Branch and by issuing the cheques induced the District Lottery Officer to deliver the tickets. From the facts stated in the First Information Report it has not been specifically stated as to how and to whom the fraudulent and dishonest representation was made causing inducement to the District Lottery Officer to deliver the tickets. From the F.I.R. it appears that the fraudulent representation and the consequential dishonest inducement has to be inferred from the facts stated in the earlier paragraphs, in which it is stated that two cheques given were dishonoured and goods were delivered in lieu of those cheques. From these facts however, it is difficult to infer that any inducement and fraudulent representation was made to induce the District Lottery Officer to deliver the lottery tickets to the petitioner. The statement of the Dist. Lottery Officer N.P. Ranjan Kasautiar in paragraph 26 of the case diary has been placed before me. It has not been stated any where that a false or fraudulent representation was made to him in regard to the encashment of the cheques. It has been submitted by the learned counsel for the State that the fact that under the Government circulars mentioned above, the Officer concerned could only accept cheques if it was found that the party was solvent, leads to the inference that the petitioners must have represented to the Dist. Lottery Officer which representation amounted to inducement that he had sufficient funds to cover the cheques in question otherwise the Dist. Lottery Officer would not have accepted the cheques and delivered the tickets. Although this inference is not mentioned in the complaint it was urged that it should be inferred as a part of the prosecution case. It is also submitted that in paragraph 26 of the diary the District Lottery Officer has stated that he has received the cheques on the basis of the Government instructions. This according to the learned counsel for the State supports his contention of inference as stated above. In my view there is no basis in law for such submission. It is also submitted that in paragraph 26 of the diary the District Lottery Officer has stated that he has received the cheques on the basis of the Government instructions. This according to the learned counsel for the State supports his contention of inference as stated above. In my view there is no basis in law for such submission. If a fact is not stated in the complaint or F.I.R. or the ingredients of a particular section are not mentioned therein such facts cannot be inferred on the basis of the possible observance of certain rules or circulars or Acts. 7. Another aspect of the matter is that the petitioner has written to the department that the amount covered by the dishonoured cheques may be recovered from the funds lying with the Government in his account on the basis of various transactions relating to sale of tickets. According to learned counsel for the State the petitioner was aware that nothing was due to him and this assertion by itself amounts to an Act, of fraudulent and dishonest deception by the petitioner. It is stated by the learned Counsel for the State that legal notice was sent to the petitioner in reply to which this assertion was made and the matter, therefore, rested here. In my view an assertion by the petitioner that there is some fund due to him from the department which according to the department is not due to him, will not amount to deception at the initial stage of the transaction by the petitioner. He has made a claim, which mayor may not be true, but that does not necessarily mean that this is an Act, of dishonesty or fraud. In my opinion, therefore, the very first ingredient of section 415 is totally absent. In the absence of fraudulent or inducement it cannot be said that the Dist. Lottery Officer was deceived to part with the lottery tickets. The second ingredient also is not specified. In fact, the very fact that the petitioner on the cheques being dishonoured paid Rs. 6200/- and on notice being given sought an adjustment of the rest of the amount of the account clearly shows that there was no intention at all to cheat the Government. The second ingredient also is not specified. In fact, the very fact that the petitioner on the cheques being dishonoured paid Rs. 6200/- and on notice being given sought an adjustment of the rest of the amount of the account clearly shows that there was no intention at all to cheat the Government. The fact that a cheque was given amounts to a promise to pay and if the cheque is dishonoured the money can always be recovered by civil action as is claimed by the petitioner from his account from the funds in his credit lying with the Government, if that is a fact, Usually when a drawer gives a cheque for encashment, he makes a promise to pay the amount on a certain date. If the cheque is not enchased it only amounts to a broken promise and it is not an offence punishable under section 420 of the Code. This is the situation in this case. 8. The next question to be examined is whether section 406 and section 409 of the Code are applicable or not. It has been submitted by the learned counsel for the petitioner that the transaction between the State and the petitioner was a pure and simple a civil one and no judicial relation is created as a result of this. The ownership in the property on payment of this cheque has passed to the petitioner. Therefore, he submits that no ingredient of breach of trust or misappropriation is made out. It has been submitted by the learned Counsel for the State that the moment the cheque is dishonoured the sale is not complete and though the delivery of the goods has taken place title to it did not pass to the petitioner and judicial relationship develops immediately and since the petitioner has sold the tickets and has not returned the money, section 406 and 409 apply. In my view there is merit in the submission of the learned counsel for the petitioner. I am not aware of any law or decision which envisages that once a sale is completed the failure to pay the consideration money or the failure to realise the consideration money extinguishes the title of the recipients in the goods. In my view there is merit in the submission of the learned counsel for the petitioner. I am not aware of any law or decision which envisages that once a sale is completed the failure to pay the consideration money or the failure to realise the consideration money extinguishes the title of the recipients in the goods. The Supreme Court held as follows:– "The expression, entrustment carries with it the implication that the person banding over any property or on whose behalf what property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a judicial relationship between them. A mere transaction of sale cannot amount to an entrustment." Since it cannot be inferred that the consideration was not intended to be paid the title in the goods passed to the agent (the petitioner here) and therefore, no entrustment can be inferred. It may be mentioned here that in the F.I.R. also it has not been stated that any goods was entrusted to the petitioner. The fact that section 406 and 409 have been cited In the F.I.R. does not by itself create the ingredients of these offences. Nothing has been brought to my notice from the records of the case which would lead to the inference that any entrustment was made to the petitioner justifying the applicability of sections 406 and 409 of the Code. 9. In this view of the matter I am satisfied after examining the F.I.R. and the statement of witnesses that no case has been made out against the accused and the essential ingredient of any offence has not been disclosed. I, therefore, hold that the prosecution of the petitioner amounts to an abuse of the process of the court and deserves to be quashed. The entire proceeding, which is pending in the court of Sri R.G. Pandey, Judicial Magistrate 1st Glass, Patna in G.R. Case No. 963/1976 Monghyr Town P.S. Case No. 43 (8) 76 against the petitioner is quashed. 10. In the result, the application is allowed. Application allowed.