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2006 DIGILAW 824 (PAT)

Dipak Kumar Banerjee v. State Of Bihar

2006-09-08

MADHAVENDRA SARAN

body2006
Judgment 1. This application u/s 482 of the Code of Criminal Procedure (in short as Code) has been filed for quashing the order dated 7.5.04 passed in complaint case no. 690(C) of 2004 by Shri Om Prakash Pandey, Judicial Magistrate, 1st Class, Patna whereby he has taken cognizance u/ss 406, 420, 465, 468/34 of the IPC and directed to issue processes against the petitioners. 2. The case of complainant, Syed Md. Sanaullah, in short, is that on 1.9.03 at about 4 PM accused Dipak Kumar Banerjee in presence of other two accused named Sandipan Banerjee and Minakshi Banerjee informed the complainant that he was interested to sale his ancestral house with land which was about 9.6 katha situated at Bijay Gopal Banerjee Path, Dariyapur, PS Pirbahore district, Patna as he was in need of money for construction of his house at Kolkata and also for proper education of his son, Sandipan Banerjee and other requirements. The complainant demanded photo copies of documents of the said property for verification on which accused, Dipak Kumar Banerjee gave photo copies of documents of the said property. After verification the complainant became satisfied that accused Dipak Banerjee is the owner of the property and after due negotiation the rate of the land was fixed at Rs. 8 lacs per katha leaving way which covers about 1.6 katha of land. After negotiation Dipak Kumar Banerjee asked the complainant to give payments to his son, accused, Sandipan Banerjee who would give receipt for it to him. Thereafter accused Sandipan Banerjee and his mother, Meenakshi Banerjee came with one Bai- Beyana deed executed in favour of complainant at his stamp vendor shop, Civil Court, Patna on 8.9.03 and give it to the complainant. The complainant gave Rs.1,10,000/- to accused Sandipan Banerjee in presence of his mother who made receipt on the above deed acknowledging the payment. Thereafter the complainant gave Rs. 6,000/- on 3.10.2003, Rs. 1000/- on 9.10.2003, Rs. 1,00,000/-on 10.10.2003 to accused Sandipan Banerjee in presence of his mother Minakshi Banerjee and on each occasion accused Sandipan Banerjee made endoresment on Bai-Beyana deed dated 8.9.03. Thereafter the complainant gave Rs. 6,000/- on 3.10.2003, Rs. 1000/- on 9.10.2003, Rs. 1,00,000/-on 10.10.2003 to accused Sandipan Banerjee in presence of his mother Minakshi Banerjee and on each occasion accused Sandipan Banerjee made endoresment on Bai-Beyana deed dated 8.9.03. In the meantime, the complainant met his legal adviser and showed him the said Bai-Beyana deed dated 8.9.03 who informed that the same was not properly written and so, a fresh deed of agreement for sale was prepared on 24.11.2003 and it was executed by the accused persons and then the complainant made payment of Rs. 1,00,000/- to accused Sandipan Banerjee through cheque and as per order of accused Dipak Kumar Banerjee. Accused Sandipan Banerjee acknowledged payment of Rs. 3,22,000/- as advance amount paid to him on different dates from the consideration amount. Again on 24.12.03 as per direction of Dipak Kumar Banerjee the complainant made payment of Rs. 1,35,000/- to Sandipan Banerjee. who made receipt of payment. It is said that thereafter the accused persons stopped meeting with the complainant and on 18.3.04 after some hot altercation the accused persons informed that they would not give him the said property nor would they return his amount. Thus, the accused persons after making conspiracy cheated the complainant and cause wrongful loss to him of Rs. 4,57,000/- and gained wrongful gain. 3. It appears that matter was enquired into u/s 202 of the Code and thereafter the learned Magistrate after being satisfied that there was sufficient material to proceed against the petitioners u/ss 406, 420, 465, 468/34 of the IPC passed the impugned order. 4. It was argued on behalf of the petitioners that even if the allegations mentioned in the complaint petition are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the petitioners and as such the cognizance order is fit to be quashed. Learned counsel in support of his contention place reliance on a decision of the Apex Court given in the case of Ram Biraji Devi & Anr. Vs. Umesh Kumar Singh & Anr reported in 2006, AIR, SCW, 2543. He also contended that this is a case of civil liability. Learned counsel in support of his contention place reliance on a decision of the Apex Court given in the case of Ram Biraji Devi & Anr. Vs. Umesh Kumar Singh & Anr reported in 2006, AIR, SCW, 2543. He also contended that this is a case of civil liability. Cheating is defined in Sec. 415 of the IPC as, "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, epilation or property, is said to "cheat". Explanation- A dishonest concealment of facts is a deception within the meaning of thiis Section. 5. The Section requires-(i) deception of any person, (ii) (a) fraudulently or dishonestly inducing that person (i) to deliver any property to any person; or (ii) to consent that person to retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit to do if he were not so deceived, and which act or omission causes or likely to cause damage or harm to that person in body, mind, repuation or property. 6. After reading this Section it is clear that in the definition there are two separate classes of acts which the person may be induced to do. In the first class- he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts as mentioned in the definition 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. So, it depends on the intention of the accused at the time of inducement which may be judged by subsequent conduct but the subsequent conduct is not the only test. It is settled view that mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. So, it is the intention which is gist of the offence of "cheating". It is settled view that mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. So, it is the intention which is gist of the offence of "cheating". From his mere failure to keep up the promise subsequently such a culpable intention cannot be presumed. 7. From the averments made in the complaint petition it appears that there was a dispute in respect of sale and purchase of land between the parties. The accused persons/petitioners refused to follow the Bai-beyana, that is, agreement for sale and also declined to return the money so advanced to them. There is nothing in the complaint petition to show criminal intention of the accused at the time of execution of Bai-Beyana deed. The breach of contract or breach of faith is not a criminal offence. Dishonest intention must be from the very beginning. The decision relied upon by the petitioners support their case that it is a case of civil liability and no criminal liability can be attributed to the petitioners/accused. 8. Learned counsel on behalf of O.P. No. 2 on the other hand supported the impugned order and submitted that from the same set facts or allegations besides civil liability, if a criminal offence is also made out, aggrieved party can proceed with the criminal prosecution. In this connection, the learned counsel relied on a decision reported in 2000(1), PCCR, given in the case of Sureshwar Narayan Singh Vs. Haribabu Pathak and Others. It appears from para 10 of this decision that the steps were taken by the court for settlement of dispute but somehow it failed to bring any result. The ratio as laid down in this decision, in my view is of no help to the complainant. 9. In the facts and circumstances of the case there cannot be any disagreement with the well settled proposition of law that power of quashing a criminal proceeding should be exercised "very sparingly" and with very circumspection and that too in the rarest of rare cases. 10. On a reading of the complaint petition portion of which have been mentioned earlier it is clear that the main offence alleged to have been committed by the petitioners/accused persons is cheating punishable u/s 420 of the IPC. 10. On a reading of the complaint petition portion of which have been mentioned earlier it is clear that the main offence alleged to have been committed by the petitioners/accused persons is cheating punishable u/s 420 of the IPC. So far as the offences u/ss 406, 465 and 468 are concerned even the basic allegations making out a case thereunder are not mentioned in the petition of complaint. 11. From what it has been mentioned above it is clear that the ingredients of intentional deception on the part of the accused petitioners right at the beginning of the negotiation for transaction has not been expressly or indirectly suggested in the petition of complaint. Therefore, no case of dishonest intention to deceive the complainant at the beginning of the transaction is made out. In such a situation, the continuation of the present criminal proceeding against the accused persons will be, in my considered opinion, an abuse of the process of the court. 12. Accordingly, this application is allowed and the impugned order dated 7.5.04 passed against the petitioners in complaint case no. 690 (C)/2004 is hereby quashed.