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2008 DIGILAW 1541 (PAT)

Hari Ram, Son Of Jamuna Ram v. State Of Bihar

2008-10-17

ABHIJIT SINHA

body2008
Judgment 1. The Petitioner, one of the accused of Complaint Case No. 675 of 2005, has filed this application for quashing of the entire criminal proceedings arising out of the aforesaid complaint case including the order dated 3.4.2006 passed therein by Sri D.K. Singh, Judicial Magistrate, First Class, Bagaha, whereby he has taken cognizance under Section 417 I.P.C. against ail the 5 accused including the petitioner. 2. It appears that the complainant, one Hanif Mian, impleaded herein as O.P. No. 2, filed the aforesaid complaint inter alia alleging that at about 6 P.M. on 12.8.2005, accused Ganesh Ram, a resident of the village of the relative of the complainant, came to his house and on query informed him that he had come to purchase an ox and had purchased one but as he fell short of Rs. 5,000/- of the value of the ox he had requested the complainant, the only person he was acquainted with in the village, for a loan of the said sum. It is said that since the complainant did not have the amount with him he promised to make arrangements for the same in the next morning and having arranged the same handed it over to Ganesh Ram who promised to return the same within a period of one month. It is also alleged that when the aforesaid amount was not returned within the stipulated period, the complainant went to the house of Ganesh Ram for refund of the money and Ganesh Ram requested for a weeks further time. It is further alleged that when the amount was not paid again within the stipulated time the complainant went to the house of Ganesh Ram asking for refund of the same and there he was abused and assaulted by the accused persons, including the petitioner, who refused to return the amount. On the aforesaid premise, the complaint was filed alleging commission of offences under Sections 420/406/323/341/504 I.P.C. but the learned Enquiring Magistrate took cognizance against all the five accused, including the petitioner, only under Section 417 I.P.C. after holding an inquiry under Section 202 Cr.P.C. 3. On the aforesaid premise, the complaint was filed alleging commission of offences under Sections 420/406/323/341/504 I.P.C. but the learned Enquiring Magistrate took cognizance against all the five accused, including the petitioner, only under Section 417 I.P.C. after holding an inquiry under Section 202 Cr.P.C. 3. It has been submitted by the learned counsel for the petitioner that it would be apparent from the statement of the complainant on S.A. as also the statements of the witnesses examined on his behalf at the inquiry that the learned court below had erred in taking cognizance under Section 417 I.P.C. as none of the ingredients for an offence under Section 417 I.P.C. had been made out against the accused persons including the petitioner. It was further sought to be submitted that Section 415 I.P.C. describes the act of cheating and Section 417 I.P.C. relates to the punishment therefor but it would be apparent from the allegations of the complaint petition as also the statement of the complainant on S.A. and the deposition of his witnesses that no offence of cheating has been made out against the petitioner save and except the omnibus allegations of the accused persons, including the petitioner, assaulting and abusing the complainant. 4. Section 415 of the Penal Code reads as follows: Section 415.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 or harm to that person in body, mind, reputation or property, is said to "cheat". 5. From a reading of the definition of Section 415 I.P.C. it would appear that the Section requires that there should be (1) deception on any person and (2)(a) fraudulently or dishonestly inducing that person (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 in body, mind, reputation or property. Mere dishonesty is not a criminal offence. Moreover, to establish the offence of cheating the complainant would have to show not only that he was induced to do or omit to do a certain act but that this induced omission on his part caused or was likely to cause him some harm or damage in body, mind, reputation or property which are presumed to be the four cardinal assets of humanity. 6. From a perusal of the complaint petition, I find no apparent presence of any ingredient of cheating against the petitioner. So far as the second part of occurrence as alleged in the complaint is concerned, the same has not been believed even by the court below while taking cognizance. 7. Due regard being had to the facts and the circumstances of the case, the continuance of the proceedings, so far as the petitioner is concerned, would amount to an abuse of the process of the court. Accordingly, the criminal proceedings arising out of the Complaint Case No. 675 of 2005, so far as the petitioner is concerned, is hereby quashed and the application is allowed.