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2000 DIGILAW 602 (PAT)

Prem Kumar Daruka v. State Of Bihar

2000-04-20

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. This application under section 482 of the Code of Criminal Procedure ("the Code" in short) has been preferred by the petitioners Prem Kumar Daruka and Manish Kumar praying therein to quash the entire prosecution as well order dated 20.04.1996 recorded by Shri S.K. Roy, Judicial Magistrate 1st Class, Aurangabad in Complaint Case No. 175/96 corresponding to Tr. No. 623/96 under which the accused petitioners were summoned to face trial for the offence under sections 420 and 323 of the Indian Penal Code. 2. The facts in brief are that the complainant Arun Kumar Singh, Opposite party No. 2, an employee in the Civil Courts at Aurangabad, had filed a complaint case on 9.4.1996 under sections 420 and 323 of the Indian Penal Code against petitioner No. 1 and his son petitioner No. 2 alleging that he had registered himself with the Gas Agency of petitioner No. 1 for a new gas connection. But the petitioners had changed his name from Arun Kumar Singh to Anil Kumar Singh and despite requests the petitioners did not correct the mistake. On a complaint to the Collector, after enquiry, the Deputy Collector directed the petitioners to allot gas connection which was refused. It was further claimed in the complaint petition, copy of which is annexed, that one day when he went to the work place to the petitioners, he was again refused the gas connection and on protest by the complainant both the petitioners had pushed him out of the premises which also caused him hurt. It was claimed that this was done by the petitioners for realising illegal money from the complainant which act had caused the complainant a loss of Rs. 5,000/-. 3. The complainant was examined on S.A. and thereafter, in an enquiry under section 202 of the Code one witness Dinesh Kumar Singh was also examined. The learned lower court, vide impugned order dated 20.4.1996, finding that there were grounds for further proceedings, summoned them to face trial for having committed offences under sections 420 and 323 of the Indian Penal Code. 4. Shri Sinha, learned Advocates for the petitioners, has argued that though from the documents that have been filed with the application, the entire allegations would be negatived, but even from the facts mentioned in the complaint petition it will appear that no offence whatsoever was made out, hence cognizance was bad in law. 4. Shri Sinha, learned Advocates for the petitioners, has argued that though from the documents that have been filed with the application, the entire allegations would be negatived, but even from the facts mentioned in the complaint petition it will appear that no offence whatsoever was made out, hence cognizance was bad in law. On the other hand, learned counsel for Opposite Party No. 2 and learned counsel for the State have argued that the facts disclosed offence, hence the petitioners were rightly summoned to face the trial. 5. Under section 420 of the Indian Penal Code the offence of cheating is punishable. Cheating has been defined under section 415 of the Indian Penal Code. Both sections are reproduced below : 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, 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". 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. From the definition of cheating ft is clear that the accused, for having committing the offence, he, by deceiving any person, must have fraudulently or dishonestly induced that person to deliver any property or induced that person to consent that any person shall retain any property or intentionally induces that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived. If such an act is committed by the accused, then further it has to be seen as to whether such act or omission does cause or is likely to cause damage or harm to that person in body, mind, reputation or property. 7. For specific offence under section 420 of the Indian Penal Code a person who cheats and dishonestly induces the victim to deliver any property to any person, or to make, alter, or destroy the whole or any part of the valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security, will be punished as indicated in the section. 8. Therefore, it will appear to commit an act of cheating the accused himself fraudulently or dishonestly induces any other person to do any of the acts or to omit to do any of the acts as defined under section 415 of the Indian Penal Code and as mentioned, in particular, under section 420 of the Indian Penal Code. 9. The entire allegation in the complaint petition is that the petitioner No. 1 had wrongly mentioned the name of the complainant in the registration and on that ground he had denied to give him a new gas connection. However, there is no allegation whatsoever in the complaint petition that the petitioners any time had deceived the complainant to do or omit to do any of the acts mentioned above. Only at the end of the complaint petition it has been claimed that the petitioners had indulged in such act because they wanted illegal money from the complainant and that the complainant was put to loss of Rs. 5000/-. But nowhere it has been complained that any of the petitioners had demanded any illegal money for giving gas connection, nor it has been stated, nor explained in course of the argument, as to how this loss of Rs. 5,000/- was made out. 10. Therefore, in my opinion, no offence of cheating has been made out against the petitioners. If by any such act of the petitioners, the complainant was put to any harm or had suffered any loss, he could have gone for civil remedy. 11. 5,000/- was made out. 10. Therefore, in my opinion, no offence of cheating has been made out against the petitioners. If by any such act of the petitioners, the complainant was put to any harm or had suffered any loss, he could have gone for civil remedy. 11. In so far as the offence under section 323 of the Indian Penal Code is concerned, hurt has been defined under section 319 of the l.P.C. as per which, whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. A person can be punished for causing hurt under section 323 l.P.C. if he causes hurt voluntarily. Presence of mens rea is essential for having caused this offence. 12. In the complaint petition allegation is that when the complainant had protested at the work premises of the petitioners, they had pushed (Dhhaka Dekar Key) him out of the premises. From the complaint petition itself it appears that there had been some altercation on account of gas connection at which the petitioners had pushed him out from the premises. From the manner this allegation has been made out it does not appear that there was any intention on the part of the petitioner to cause hurt. Learned counsel for the petitioner has drawn my attention towards section 95 of the I.P.C. under which nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. The allegation here is that after some altercation, the petitioners had pushed the complainant out of the premises that belonged to the petitioners. It does not appear that as per allegation the petitioners had any intention to voluntarily cause harm to the complainant and also that the harm, if any, caused was so slight, that it ought to be covered under general exception of section 95 of the l.P.C. 13. In view of the aforesaid, on such allegation the prosecution will appear to be abuse of the process of the court. 14. This being so, this petition is allowed. The prosecution as well impugned order dated 20.4.1996, asaforesaid, are quashed.