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Jharkhand High Court · body

2012 DIGILAW 1613 (JHR)

Surendra Upadhayay v. State of Jharkhand

2012-11-06

R.R.PRASAD

body2012
JUDGMENT Heard learned counsel appearing for the petitioner, State and learned counsel appearing for the Opp. Party No.2. 2. This application has been filed for quashing of the entire criminal proceeding of Chas P.S. Case No.126 of 2007 (G.R. No.1095 of 2007) as well as order dated 11.08.2010 whereby and whereunder cognizance of the offence punishable under Sections 406/420 of the Indian Penal Code and also under Section 138 of the Negotiable Instrument Act, has been taken against the petitioner. 3. Before adverting to the submissions advanced on behalf of the parries, the case of the complainant needs to be taken notice of:- 4. It is the case of the complainant that there was a business relationship in between the complainant and the petitioner and in that course, the petitioner took a friendly loan by making promise that it would be returned within four months. In spite of passing off four months, when the money was not paid, reminder was given to the petitioner to make payment and then a cheque of Rs.1,00,000/-was issued in favour of the complainant, which on its deposit, got dishonoured. 5. On such allegation, a Complaint Case No. 186 of 2002 was registered, which was sent under Section 156 (3) Cr.P.C. for its institution and investigation before the concerned police station, upon which Chas P.S. Case No.126 of 2007 (G.R. No.1095 of 2007) was registered under Sections 406/420 of the Indian Penal Code and also under Section 138 of the Negotiable Instrument Act. 6. After submission of the charge sheet, cognizance of the offence was taken under Sections 406/420 of the Indian Penal Code and also under Section 138 of the Negotiable Instrument Act, vide order dated 11.08.2010, which is under challenge. 7. Learned counsel appearing for the petitioner submits that even accepting the entire allegation to be true, no offence is made out either under Sections 406 or 420 of the Indian Penal Code, as the petitioner has never been alleged to have induced the complainant fraudulently or dishonestly to part with the money, rather it is a simple case of breach of promise and, thereby, the court did commit illegality in taking cognizance of the offence under Sections 406 and 420 of the Indian Penal Code. 8. As against this, Mr. Atanu Banerjee, learned counsel appearing for the Opp. 8. As against this, Mr. Atanu Banerjee, learned counsel appearing for the Opp. Party No.2 submits that there was intention right from the beginning not to return the money, after taking loan from the complainant and, thereby, offence of cheating is certainly made out and hence, the order taking cognizance never warrants to be quashed. 9. In the context of the submission advanced on behalf of the parties, one needs to take notice of the 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”. 10. 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. 11. 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. 12. 11. 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. 12. 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 that on being induced fraudulently or dishonestly by the petitioner, the complainant part with the money and hence, necessary ingredients of deception is lacking. 13. Likewise, necessary ingredients for constituting offence under Section 406 of the Indian Penal Code is also lacking. 14. Accordingly, the court seems to have committed illegality in taking cognizance of the offence under Sections 406/420 of the Indian Penal Code and hence, that part of the order, under which cognizance of the offence has been taken against the petitioner under Sections 406/420 of the Indian Penal Code, is hereby, quashed. 15. In the result, this application stands allowed but in part.