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Uttarakhand High Court · body

2010 DIGILAW 716 (UTT)

DEVANAND SHARMA v. STATE OF UTTARANCHAL

2010-09-23

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.), is directed for quashing the Criminal Case No. 1472 of 2004, Kushlanand Mamgain Vs. Devanand Sharma, U/s 406/420/120(B)/504/506 of the Indian Penal Code, 1860 [hereinafter to be referred as IPC], pending before JM Ist, Dehradun. 2. Heard learned counsel for the parties and perused the material on record. 3. In brief, the facts of the case are that the respondent no. 2 – Kushlanand Mamgain lodged a complaint against the present petitioners stating therein that on 1.5.1980, he along with the other petitioners had purchased a 1.92 acres of land from one Ibrahim and the petitioners and the complainant were having equal share over that piece of land. On 5.6.2001, all the petitioners and respondent no. 2 sold out the said land to Ashish Kumar, Harish Kumar and Smt. Shiksha Devi for Rs. 7.00 lacs and as per the request of the purchasers, the sale consideration was shown as Rs. 5.00 lacs. The amount of sale consideration was agreed to be equally distributed among all brothers in the home and the complainant was assured that he would be given his share. After that when the complainant with his brothers came at the house of petitioner no. 1 for his money, the petitioners 1 and 2 straight forward refused to the complainant to give his share. With the same averments, the complaint was lodged. Thereafter, the trial court vide order dated 15.4.2004 summoned the petitioners u/s 420/406/120-B/504/506 IPC. Hence this petition. 4. Learned counsel appearing for the petitioner argued that on the basis of the averments made in the complaint, there is no offence made out against the petitioners. I find force in this argument. On a bare perusal of the complaint, even not a single allegation has been made in the complaint, which may constitute any offence of cheating against them. Learned counsel appearing for the petitioner argued that on the basis of the averments made in the complaint, there is no offence made out against the petitioners. I find force in this argument. On a bare perusal of the complaint, even not a single allegation has been made in the complaint, which may constitute any offence of cheating against them. It is relevant to mention the definition of Cheating, as defined under Section 415, which reads as under :- “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”.” 5. From a bare perusal of the complaint, it does not reveal that any of the ingredients of the Cheating, as quoted above, are made out against the petitioners. 6. Likewise, Section 405 IPC defines criminal breach of trust which reads as under :- “Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. 7. On a bare perusal of the complaint itself, it is proved that the necessary ingredients of criminal breach of trust are also not made out and as such the offence u/s 406 IPC is also not proved against the petitioners. 8. 7. On a bare perusal of the complaint itself, it is proved that the necessary ingredients of criminal breach of trust are also not made out and as such the offence u/s 406 IPC is also not proved against the petitioners. 8. Likewise, Section 503 IPC defines the criminal intimidation, which also reads as under :- Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 9. However, on perusing the complaint filed by the respondent no. 2 against the petitioners, necessary ingredient of criminal intimidation, as quoted above, are also not proved and hence the offence punishable u/s 506 IPC is also not made out. 10. Similarly, the provisions of Section 504 IPC are also not made out against the present petitioners inasmuch as there is no mention about the intentional insult by the petitioners to the respondent no. 2 with intent to provoke breach of the peace. 11. Since the main offences i.e. Sections 420/406/504/506 IPC are not made out against the petitioners, as such there is no question of criminal conspiracy hatched by the petitioners against the respondent no. 2 and therefore the offence u/s 120-B IPC is also not made out against the petitioners. 12. Apart from above, if there is any dispute about the money, i.e. only a civil dispute between the parties for which the initiation of criminal proceedings is neither proper nor justifiable. Even there is no representation for the respondent no. 2, though the service has been effected upon him personally and as such no offence is made out against the petitioners on the basis of the complaint lodged by the respondent no. 2. 13. Thus, for the reasons as aforesaid, the C482 petition is allowed. Order dated 15.04.2004 passed by the JM Ist, Dehradun, summoning the petitioners u/s 420/406/120-B/504/506 IPC as well as further proceedings of Criminal Case No. 1472 of 2004, are hereby quashed. Interim order dated 09.03.2006 is vacated accordingly.