JUDGMENT 1. - By this criminal revision petition under Section 397 read with Section 401 Cr.PC., petitioners have challenged the order dated 5.4.2004 passed by the Judicial Magistrate No. 2 (City-South), Udaipur (for short, "the trial court" hereinafter), whereby the trial court took cognizance of the offence under Section 420 read with Section 34 IPC against the petitioners and refused to accept the negative final report filed by the police and issued process and summoned the petitioners to appear before it on 29.5.2004. Aggrieved by the order impugned taking cognizance and issuing process against the petitioners, the petitioners have preferred the instant criminal revision petition. 2. Briefly stated, the facts relevant and necessary for decision of this revision petition are that on 16.7.2001, respondent No. 2 filed a complaint before the trial court against the petitioners, inter alia, alleging therein that petitioner No. 7 Sushma Sharma is the niece of respondent No. 2 and petitioners No. 4 and 7 are his friends and as such the complainant respondent No. 2 was knowing them. It was alleged that on 16.3.2001, petitioner No. 7 requested respondent No.-2 for advancing a loan of Rs.2.5 lac for purchasing a house. Against the said amount, petitioner No. 7 issued a post-dated cheque dated 7.7.2001 in favour of respondent No. 2 for a sum of Rs.2.5 lac and assured the respondent No. 2 that on presentation of the cheque, the same would be honoured, upon which the respondent No. 2 asked petitioner No. 7 to give a receipt for the said amount, on which petitioner No. 7 asked petitioner No. 1 Gautam Dhara to get the receipt typed and the petitioner No. 1 got a receipt typed and affixed revenue stamp thereon and the same was signed by the petitioner No. 7 Sushma Sharma and given to the respondent No. 2 and respondent No. 2 gave a sum of Rs. 2.5 lac to the petitioner No. 7 Smt. Sushma. Petitioner No. 7 counted the currency notes amounting to Rs.2.5 lac and gave the same to the family members of Gautam Dhara. 2.5 lac to the petitioner No. 7 Smt. Sushma. Petitioner No. 7 counted the currency notes amounting to Rs.2.5 lac and gave the same to the family members of Gautam Dhara. It was agreed by petitioner No. 7 that after two months, they would return the amount by adding Rs.25,000/-, i.e. Rs.2,75,000/- and for some reason if the petitioner.No. 7 fails to return the said amount, then the house No. 18-B situated in Ganpati Nagar, Bohra Ganeshji, will be sold to the respondent No. 2 at the price 20% reduced from original price. After saying so, they went away. After about two months, when the respondent No. 2 went to the house No. 18-B, Ganpatinagar, he came to know that the petitioners had left the house and went somewhere else. However, subsequently, on inquiry, respondent No. 2 came to know that the petitioners went to Hugli (district Kolkata). The cheque was presented in the bank by the respondent No. 2 through Gramin Anchalik Bank but the same was not honoured and returned with the endorsement that in the account of the petitioner No. 7, there is insufficient amount as also the signatures of petitioner No. 7 did not tally with the bank record. On this, respondent No. 2 filed a complaint for the offences under Sections 468 and 420/34 IPC against the petitioners before the learned trial court on 16.7.2001. The said complaint was sent to the police for investigation under Section 156(3) Cr.PC. On the basis of the complaint, the police registered the crime report and investigated the matter. After investigation, the police filed a negative final report. The trial court, upon hearing the counsel for the respondent No. 2 and perusal of the negative final report filed by the police, vide impugned order dated 5.4.2004, took cognizance against the petitioners for the offence under Section 420/34 IPC and rejected the negative final report submitted by the police. 3. I have heard learned counsel for the petitioners, the learned Public Prosecutor for the State and Shri P.C. Sharma, learned counsel for the respondent No. 2 and perused the order impugned. 4. It is contended by the learned counsel for the petitioners that the petitioner No. 7 is the daughter of Shri P.C. Sharma, Advocate, learned counsel appearing for the respondent No. 2 and niece (sister's daughter) of respondent No. 2 Om Prakash. 4. It is contended by the learned counsel for the petitioners that the petitioner No. 7 is the daughter of Shri P.C. Sharma, Advocate, learned counsel appearing for the respondent No. 2 and niece (sister's daughter) of respondent No. 2 Om Prakash. She, after having completed higher education, at her own sweet will, married to petitioner No. 1 Gautam Dhara may be against the wishes of her father and other family members. Petitioner No. 5 is the mother, petitioners No. 2 and 3 are brothers and petitioner No. 4 is the sister of petitioner No. 1. Petitioner No. 6 is the sister-in-law (Bhabhi) of petitioner No. 1. His further contention is that the petitioners have not committed any offence whatsoever but since petitioner No. 7 has married to petitioner No. 1 against the wishes of her father Shri P.C. Sharma, learned counsel appearing for the respondent No. 2 and the respondent No. 2 being the maternal uncle of petitioner No. 7, as such with the connivance of father of petitioner No. 7, a false case has been concocted by respondent No. 2 against the petitioners in order to implicate all family members of petitioner No. 1. It has further been contended that the father of petitioner No. 7 had rented property, which was let out to the tenant and the rent of which was accepted by her father through cheques, for which the father of the petitioner No. 7 opened separate bank accounts in the names of petitioner No. 7 and her brother and the petitioner No. 7 never operated that bank account. The cheque book of that account was lying with the father of petitioner No. 7 and that has been misused by them by issuing the. said cheque which had never been issued by the respondent No. 7. It has further been contended that except that cheque, there had been no transaction carried out by the petitioner No. 7. 5. Learned Public Prosecutor appearing for the State supported the conclusion arrived at by the investigating agency as also filing the negative final report. Shri P.C. Sharma, learned counsel for respondent No. 2 did not controvert his relation with respondent No.2, who is his real brother-in-law (loser) as also petitioner No.7 being his real daughter. 5. Learned Public Prosecutor appearing for the State supported the conclusion arrived at by the investigating agency as also filing the negative final report. Shri P.C. Sharma, learned counsel for respondent No. 2 did not controvert his relation with respondent No.2, who is his real brother-in-law (loser) as also petitioner No.7 being his real daughter. However, learned counsel for the respondent No. 2 submitted that it is not open for this Court to interfere with the impugned order taking cognizance as taking cognizance of offence is within the exclusive domain of the judicial magistrate, who, on being satisfied that there are sufficient grounds for further proceeding against the petitioners, rejected the negative final report submitted by the police and took cognizance of offence under Section 420/34 IPC and issued process against the petitioners for the aforesaid offence. In support of his contention, learned counsel for the respondent No. 2 has relied upon a decision of the Hon'ble Supreme Court in Jagdish Ram v. State of Rajasthan, 2004 (1) WLC (SC) Cri. 545 : AIR 2004 SC 1734 . It has further been contended by the learned counsel for the respondent No. 2 that the power under Section 482 Cr.PC. are to be exercised very sparingly and cautiously and in this regard, he has placed reliance on a decision of the Supreme Court in Rama Shankar Mani Tripathi v. State of Bihar, 2001 (3) Crime 195 (SC). 6. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and perused the material on record as also the impugned order. 7. From the perusal of the complaint filed by respondent No. 2 as also the order impugned dated 5.4.2004, it is clear that the cheque No. 054404 dated 7.7.2001, which is said to be a post-dated cheque for a sum of Rs.2.5 lac, had been issued in favour of respondent No. 2 pertaining to the bank account of petitioner No. 7 Sushma Sharma. In the complaint, it has been stated by the respondent No. 2 that the said cheque was given to him by petitioner No. 7 Sushma Sharma. Upon asking for the receipt, it was the petitioner No. 1 who got the receipt typed and the same was signed by petitioner No. 7 and given to the respondent No. 2. Except this, no overt-act has been assigned to the remaining petitioners. 8. Upon asking for the receipt, it was the petitioner No. 1 who got the receipt typed and the same was signed by petitioner No. 7 and given to the respondent No. 2. Except this, no overt-act has been assigned to the remaining petitioners. 8. Section 420 IPC, which pertains to constitution of the offence of cheating, and dishonestly inducing delivery of property, reads as under:- "420. Cheating and dishonestly inducing delivery of property Whosoever 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 1. 2004(1) WLC (SC) Cri. 545: 2. 2001(3) Crime 195 (SC) AIR 2004 SC 1734 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." 9. The very essential ingredients of an offence of cheating, punishable under Section 420 IPC, are that there should be fraudulent or dishonest inducement of a person by deceiving him, the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. 10. In the instant case, taking the complaint and the material on their face value, it is the petitioner No. 7 who is alleged to have fraudulently or dishonestly induced respondent No. 2 by deceiving him to deliver a sum of Rs.2.5 lac to her and against which the said cheque was allegedly given by her to the respondent No. 2, as stated by the complainant. In the complaint, the respondent No. 2 stated that it was the petitioner No. 7 who took out the cheque drawn in favour of respondent No. 2 for a sum of Rs.2.5 lac duty signed by her and gave it to the respondent No.2. Thus, giving of said cheque may be a fraudulent and dishonest inducement by the petitioner No. 7 to respondent No. 2 to deliver a sum of Rs.2.5 lac. Thus, giving of said cheque may be a fraudulent and dishonest inducement by the petitioner No. 7 to respondent No. 2 to deliver a sum of Rs.2.5 lac. So far as petitioner No. 1 is concerned, the allegation against him is that he got prepared the receipt for the said amount and after having got it signed by petitioner No. 7, handed over to the respondent No. 2. Except the aforesaid acts assigned to petitioners No. 1 and 7, no overt-act has been assigned to the other petitioners. Neither the other petitioners gave the cheque nor induced respondent No. 2 to deliver the property, nor they were signatory or in any manner indulged themselves in getting the receipt prepared. Merely because they are family members of petitioner No. 1, as mentioned above, which has not been disputed by the learned counsel for the respondent No. 2, all the family members have been implicated. The very essential ingredients for constituting an offence under Section 420/34 IPC are missing against the other petitioners. 11. Section 34 IPC pertains to acts done by several persons in furtherance of common intention and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Thus, to attract the provisions of Section 34 IPC, it is essential to show that the criminal act should have been done, not by one person but by more than one person and that they shared a common intention to commit the offence and in furtherance thereof, each one played his assigned role by doing certain act. It is relevant to mention here that to consider the common intention, there must be a pre-arranged plan which can be proved either from the conduct or from the circumstances or from incriminating facts. 12. In the instant case, so far as petitioners No. 2 to 6 and 8 are concerned, the complainant has merely shown their presence when the petitioner No. 7 allegedly induced respondent No. 2 to deliver Rs.2.5 lac and against which a post-dated cheque was drawn in favour of respondent No. 2 duly signed by the petitioner No. 7 and was given to the respondent No. 2. None of these petitioners shared a common intention in inducing respondent No. 2 to deliver the property. For the purpose of taking cognizance, there are three contingencies, i.e. (i) upon receiving a complaint of fact which constituted such offence, (ii) upon a police report of such facts, and (iii) upon information received from any person other than the police officer or upon his own knowledge that such offence has been committed. From these three sources, if the magistrate is of the opinion that there is no sufficient ground for proceeding, he shall refuse to take cognizance and if the magistrate is of the opinion that there is sufficient ground for proceeding against the persons named therein, he shall take cognizance of offence and issued process. In the instant case, on careful perusal of the complaint and the order impugned, so far as petitioners No. 2 to 6 and 8 are concerned, it no where appears that there is sufficient ground for proceeding against them except that they have been arrayed in the category of accused in the complaint filed by respondent No. 2. 13. In Jagdish Ram's case (supra), the Hon'ble Apex Court held as under: "In the instant case, the order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding or not, whether there is sufficient ground for conviction. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding or not, whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons." 14. In Rama Shakner Mani Tripathi's case (supra), the contention raised before the Hon'ble Supreme Court was that in regard of power under Section 482 Cr.PC., the High Court was not justified in shifting the evidence and coming to the conclusion that the initiation of proceeding was with some oblique motive for wrecking vengeance. The Apex Court observed that it is too well settled that the High Court should exercise its powers under Section 482 Cr.P.C. very sparingly and on consideration of material on its face value, if it comes to the conclusion that still no offence is made out, it would be open for the High Court to invoke its power under Section 482 Cr.PC. But the court would not be justified in shifting the evidence as if it is exercising the power of the Court in trial and interfere with an order taking cognizance of an offence. 15. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , the Hon'ble Supreme Court held that where the allegations made in the complaint or the statements 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, the process issued by the 3. (1976) 3 SCC 736 magistrate can be quashed on such case being. (1976) 3 SCC 736 magistrate can be quashed on such case being. The guidelines have been given by the Hon'ble Apex Court in Smt. Nagawwa's case (supra) that in the following cases, the order of Magistrate issuing process can be quashed or set-aside: (1) where the allegations made in the complaint or the statements 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 are 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 complaint by legally competent authority and the like. 16. In Punjab National Bank v. Surendra Prasad Sinha, 1993 Supp. (1) SCC 499 the Hon'ble Supreme Court, cautioning against issuing of process so that it should not be an instrument in the hands of the private complainant as vendetta to harass the person needlessly, held as under: "It is salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against the appellants without any prima facie case to harass them from vendetta." 17. In Madhvrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre, (1996) 1 SCC 692 , the Hon'ble Supreme Court held that the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 18. In the instant case, the allegations made against the petitioners No.2 to 6 and 8 are very vague and bald. From the material, as placed before the Magistrate, even prima facie it cannot be said that these petitioners had common intention to cheat respondent No. 2 by inducing him fraudulently and dishonestly to deliver the property with an intent to deceive him. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. In the whole of the complaint and the material placed before the Magistrate during inquiry by the police, there is no such whisper so far as petitioners No. 2 to 6 and 8 are concerned. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. In the whole of the complaint and the material placed before the Magistrate during inquiry by the police, there is no such whisper so far as petitioners No. 2 to 6 and 8 are concerned. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. In the instant case, there is absolutely no evidence that these petitioners, except petitioners No. 1 and 7, had any intention to deceive the respondent No. 2 by inducing him fraudulently and with dishonest intention to deliver the property. Having regard to the facts and circumstances, it is difficult to discern an element of deception in the whole transaction whereas it is palpably evident that the respondent No.2 had an oblique motive of causing harassment to the petitioners No. 2 to 6 and 8 as they are close relatives of petitioner No. 1, who married petitioner No. 7 against the wishes of her father and family members. 19. It is true that the powers under Section 482 Cr.P.C. are to be exercised sparingly and cautiously in the exceptional cases to prevent abuse of process of any court or otherwise to secure the ends of justice. However, if it is brought to the notice of the Court that non-interference would result in manifest injustice then the court should not hesitate in exercising the powers under Section 482 Cr.PC. In S.N. Palanitkar v. State of Bihar, AIR 2001 SC 2960 the Hon'ble Apex Court held that while exercising the power under Section 482 Cr.P.C., the High Court has to look at the object and purpose for which such power is conferred on it under the said provision. The Apex Court further observed that exercising of inherent power is available to High Court to give effect to any order under the Code of Criminal Procedure or to prevent abuse of process of the Court or otherwise to secure ends of justice. This being the settled legal proposition, exercise of power under Section 482 Cr.PC. should be consistent with the scope and ambit of the Code. This being the settled legal proposition, exercise of power under Section 482 Cr.PC. should be consistent with the scope and ambit of the Code. It was further held that in appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also so that the judicial forum of the court may not be allowed to be utilised for any oblique motive. When a person approaches the High Court under Section 482 Cr.P.C. to quash the very issue of process, the High Court on the facts and circumstances of the case has to exercise the powers with circumspection to really serve the purpose and object for which they are conferred. 20. Keeping in view the above settled proposition of law, if the case in hand is examined with the limitations of this Court that at this stage it would not be desirable to sift the evidence as made available on record and taking into consideration the material on its face value and the complaint, it can safely be concluded that so far as petitioners No. 2 to 6 and 8 are 6. concerned, prima facie no offence punishable under Section 420/34 IPC is made out against them and, therefore, to allow the criminal proceedings to continue against these petitioners, i.e. No. 2 to 6 and 8 would amount to abuse of process of the Court and, therefore, to secure the ends of justice and to prevent manifest injustice, the criminal proceedings against these petitioners, except petitioners No. 1 and 7, cannot be sustained and are liable to be quashed. Even the decision relied upon by the learned counsel for respondent No. 2, in Rama Shankar Mani Tripathi's case (supra), to this extent, support the case of these petitioners.So far as the decision in Jagdish Ram's case (supra) relied upon by the learned counsel for the respondent No. 2 is concerned, there is no dispute with the legal proposition laid down therein. However, it turns on its own facts and is of no help to the respondent No. 2. However, it turns on its own facts and is of no help to the respondent No. 2. In that case, the Magistrate took cognizance by a well written order and that order not only referred the statements recorded by the police during investigation which led to filing of final report by the police but also the statement of witnesses recorded by the magistrate under Sections 200 and 202 Cr.PC. It also sets out with clarity the principles to be kept in mind at the stage of taking cognizance in reaching a prima facie view. It was held by the Apex Court that at this stage, the magistrate has only to decide whether sufficient ground exists or not for further proceeding in the matter. It was further held that taking of cognizance of offence is an area which is exclusively within the domain of the magistrate. However, it was held that at this stage, the magistrate has to satisfy whether there is sufficient ground for proceeding or not, whether there is sufficient ground for conviction, whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. 21. It is true that at the stage of taking cognizance, the magistrate is not required to conclude as to whether the material placed before it is sufficient to convict the person or not; what the magistrate is required is whether there is sufficient ground for proceeding against the accused. In the instant case, as noticed above, even on perusal of the complaint and the material, as also the impugned order, taking on their face value, prima facie no offence punishable under Section 420/34 IPC is made out against petitioners No. 2 to 6 and 8 and, therefore, in my view, allowing criminal proceedings to continue against them would amount to abuse of process of the court. 22. So far as petitioners No. 1 and 7 are concerned, prima facie offence under Section 420/34 IPC is made out against them on the basis of the material discussed hereinabove and, therefore, in my view, the trial court was justified in taking cognizance for the aforesaid offence against petitioners No. 1 and 7 and, therefore, the contention raised by the learned counsel for these two petitioners that the cheque book in question was with the father of petitioner No. 7 cannot be given any weightage. 23. In view of the aforesaid discussion, the revision petition filed by petitioner No. 1 Gautam Dhara and petitioner No. 7 Sushma Sharma lacks merit and is hereby dismissed and the order impugned, taking cognizance against these two petitioners is maintained. However, the revision petition filed by petitioners No. 2, 3, 4, 5, 6 and 8 is allowed and the impugned order, taking cognizance against them is set-aside and the proceedings against these petitioners, i.e. No. 2 to 6 and 8 are quashed. The ad interim stay order stands vacated so far petitioners No. 1 and 7 are concerned. Stay petition stands disposed of.Revision of Petitioners No. 2 to 6 and 8 Allowed But that of Petitioners 1 and 7 Dismissed. *******