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Jharkhand High Court · body

2012 DIGILAW 1556 (JHR)

Ram Kumar Modi v. State of Jharkhand

2012-10-30

R.R.PRASAD

body2012
ORDER 1. Heard learned counsel appearing for the petitioners, State and learned counsel appearing for the Opp. Party No.2. This application has been filed for quashing of the order dated 07.03.2008 passed by learned Judicial Magistrate, Ranchi in Complaint Case No.C-991 of 2007 whereby and whereunder, the then learned Magistrate, took cognizance of the offence punishable under Sections 418 of the Indian Penal Code against the petitioners. 2. It is the case of the complainant that the complainant entered into an agreement with the petitioner No.2 for purchasing a piece of land appertaining to Khata No.119/35, Plot No.7, Sub Plot No.7/ E, measuring an area 13 Kattha, 10 Chantak, situated at Village Bhitha, for a total consideration amount of Rs.8,00,000/-and as against that an advance money of Rs.1,55,000/-has been paid to the petitioner No.2, on promise being given that sale deed would be executed and would get it registered in her favour but the petitioner no.2 and also the petitioner no.1, who happens to be the husband of petitioner no.2, always avoided to execute the sale deed, in spite of request being made to them to execute the sale deed and ultimately, the land was sold to one Shyam Kumar Jalan. 3. On such allegation, a complaint case was registered as C-991 of 2007 under Sections 406, 420 and 423 of the Indian Penal Code. 4. The court, after holding enquiry, took cognizance of the offence punishable under Section 418 of the Indian Penal Code, vide order dated 07.03.2008, which is under challenge. 5. Mr. A.K. Chaturvedi, learned counsel appearing for the petitioners submits that even accepting the allegation made in the complaint petition to be true, no offence is made out under Section 418 of the Indian Penal Code, as the petitioners have never been alleged to have induced the complainant fraudulently or dishonestly to part with the money for purchasing the land and as such it becomes a simple case of breach of promise. It does not have element of any criminal offence. 6. It was further submitted that since correct fact has not been given in the complaint, it needs to be brought to the notice of the court. It does not have element of any criminal offence. 6. It was further submitted that since correct fact has not been given in the complaint, it needs to be brought to the notice of the court. In this regard, it was stated that after initial talk, the parties entered into an agreement dated 29th September, 2003, whereby time was given till th February, 2004 for making payment of the rest of the amount, but when that amount was not given within the time as stipulated under the agreement, that period was extended till June, 2004. In spite of that, the money was not paid. In spite of that a legal notice dated 03.07.2004 was given calling upon the complainant to fulfill his part of obligation, failing which the petitioners would be at liberty to rescind the contract. The complainant never responded. Thus, under the circumstances, no criminal offence is made out against the petitioners. 7. As against this, Mr. Ashutosh Anand, learned counsel appearing for the Opp. Party No.2 submits that only when the petitioners made their intentions clear to sale the land and to execute the sale deed, the complainant paid a sum of Rs.1,55,000/-in advance but the petitioners did not execute the sale deed in favour of the complainant and as such, the petitioners did commit offence, cognizance of which has been taken as right from the beginning intention was there to cheat the complainant, which would be evident from the fact that the said land subsequently was sold to someone else. 8. Learned counsel would further submits that the fact of this case is similar to the fact upon which illustration (g) of Section 415 of the Indian Penal Code is based and thereby, the case of cheating gets established and hence, the order taking cognizance never warrants to be quashed. 9. Thus, the question does arise as to whether in the face of allegation made in the complaint, any offence punishable under Section 418 of the Indian Penal Code is made out or not. 10. 9. Thus, the question does arise as to whether in the face of allegation made in the complaint, any offence punishable under Section 418 of the Indian Penal Code is made out or not. 10. The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows:- “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 persons 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 reputation or property, is said to 'cheat”. 11. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) There should be fraudulent or dishonest inducement of a person by deceiving him. (2) (a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property or (b) 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. (3) In cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property. 12. Thus, the first element necessary for constituting the offence of cheating is a deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. After deception has been practiced the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception? 13. In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. 13. In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the principle constituting a criminal offence of cheating in context of the allegation it does appear that first element of deception constituting an offence of cheating is lacking as nowhere the allegations made in the complaint do indicate about the complainant on being deceived by the petitioners fraudulently or dishonestly got induced to part with money. 14. The said proposition also gets established from illustration (g) to Section 415 of the Indian Penal Code, which reads as follows:- “(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantitiy of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such deliver. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract”. 15. On going through it, it would appear that the case of cheating is made out only when one intentionally deceives, meaning thereby that unless there would be deception, no case of cheating is made out. In absence of deception, if any case is made out, it is made out of breach of contract. 16. Here, in the instant case, I do not find any allegation of petitioners inducing the complainant fraudulently and dishonestly to part with the money for execution of the the sale deed. 17. Under the circumstances, I do find that no offence is made out against the petitioner. 18. Consequently, the order taking cognizance dated 07.03.2008 passed by learned Judicial Magistrate, Ranchi in Complaint Case No.C-991 of 2007 is, hereby, quashed. 19. In the result, this application is allowed.