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Uttarakhand High Court · body

2010 DIGILAW 556 (UTT)

BALBIR SINGH v. STATE OF UTTARANCHAL

2010-08-05

DHARAM VEER

body2010
JUDGMENT This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), has been filed for quashing the summoning order dated 19.6.2006 passed by the CJM, Rudraprayag in Criminal Case No. 194 of 2006, Darban Singh Vs. Balbir Singh, U/s 420 IPC, as well as against the judgment and order dated 23.8.2006 passed by the Sessions Judge, Rudraprayag in Criminal Revision No. 5 of 2006. 2. Heard learned counsel for the parties and perused the materials on record. 3. In brief, the facts of the case are that the respondent no. 2 filed a complaint in the court of CJM, Rudraprayag with the averments that the petitioner Balbir Singh installed a Flour Mill in the name of his wife Rajeshwari Devi at Patti Bachchansyun Bamsu. He had requirement of Rs. 33,000/- in this regard and, therefore, he asked for that money from the complainant Darban Singh. Since Darban Singh had only Rs. 15,000/- of his own, so on the request of the petitioner, complainant Darban Singh applied for loan of the rest amount of Rs. 18,000/- in the State Bank of India (Agriculture Development Branch), Rudraprayag and after availing the same gave it to the petitioner to run the said Flour Mill. But when the petitioner did not return this amount to the complainant as per the agreement, then the complainant sent notices to the petitioner. Ultimately on 1.5.1989, petitioner executed a promissory note in favour of the complainant promising that he would pay the total amount of Rs. 33,000/- to the complainant up to 30.8.1992. But despite of this, he did not return the amount to the complainant Darban Singh. Therefore, with these averments, the complainant Darban Singh filed the instant complainant against the petitioner. 4. Learned Magistrate after recording the statement of the complainant Darban Singh u/s 200 Cr.P.C. and witnesses PW1 Sundar Singh and PW2 Mohan Singh u/s 202 Cr.P.C. and in view of other documentary evidence, took cognizance of the offence and issued the summons against the petitioner Balbir Singh for the said offence vide order dated 19.6.2006. 5. Feeling aggrieved, the petitioner preferred a criminal revision against the aforesaid order dated 19.6.2006, which was dismissed by the Sessions Judge, Rudraprayag vide judgment and order dated 23.8.2006. Hence, assailing the orders dated 19.6.2006 and 23.8.2006, petitioner has filed this petition before this Courts. 6. 5. Feeling aggrieved, the petitioner preferred a criminal revision against the aforesaid order dated 19.6.2006, which was dismissed by the Sessions Judge, Rudraprayag vide judgment and order dated 23.8.2006. Hence, assailing the orders dated 19.6.2006 and 23.8.2006, petitioner has filed this petition before this Courts. 6. Learned counsel for the petitioner submitted that on the basis of the averments made in the complaint, no offence of Cheating is made out against him. I find substance in this argument. Cheating has been defined u/s 415 IPC, which reads as under :- “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 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, is said to “cheat”.” 7. From a bare perusal of the contents of the complaint filed by the complainant, no ingredient of Cheating, as mentioned above, is made out. Rather the contents of the complaint constitute civil dispute. Hence, the summoning order passed by the learned Magistrate on the basis of the complaint is absolutely not correct and justified. I am fortified in my view with the verdict of judgment of Hon’ble Apex Court in the case of Hotline Teletubes and Components Ltd. & others Vs. State of Bihar & another reported in 2005 SCC (Cri) 515, paragraph 2 of this judgment is quoted as below :- “2. This appeal by special leave has been filed by the appellants against the order passed by the Patna High Court, refusing to quash their prosecution under Sections 406 and 420 of the Indian Penal Code (for short “IPC”). In the complaint petition, it has been alleged that the complainant supplied goods to the accused persons, but they failed to pay the price therefore. There is no whisper in the complaint that at the very inception of the contract between the parties, there was any intention to cheat. In the complaint petition, it has been alleged that the complainant supplied goods to the accused persons, but they failed to pay the price therefore. There is no whisper in the complaint that at the very inception of the contract between the parties, there was any intention to cheat. It appears from a bare perusal of the complaint that it is a case of purely civil liability and no criminal offence is disclosed, much less offences either under Sections 406 or 420 IPC. So far as the High Court is concerned, it has not considered this aspect of the matter, but has refused to quash the prosecution observing that it was a fit case where parties should take steps for settlement. In our view, allowing such prosecution to continue would amount to an abuse of the process of court and to prevent the same, it would be just and expedient to quash the same.” 8. Thus, on the basis of the above said facts and circumstances of the case as well as in light of the dictum of the Hon’ble Apex Court in the case of Hotline Teletubes (supra), I am of the considered view that the ingredients of Cheating is apparently missing in this case and hence, the offence punishable u/s 420 IPC is not made out on the basis of the averments made in the complaint and even no allegation was there that there was any intention of cheating by the petitioner against the complainant before entering into the said contract between the parties. 9. For the reasons as aforesaid, C482 petition is allowed. The impugned orders dated 19.6.2006 passed by the CJM, Rudraprayag and the judgment and order dated 23.8.2006 passed by the Sessions Judge, Rudraprayag as well as the entire proceedings in pursuance of Criminal Complaint Case No. 194 of 2006, Darban Singh v. Balbir Singh are hereby quashed.