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2012 DIGILAW 342 (JHR)

Arun Kumar Singh v. State of Jharkhand

2012-03-06

R.R.PRASAD

body2012
ORDER By the Court.-This application is directed against the order dated 13.7.2009 passed in Complaint case No. 649 of 2009 whereby and whereunder the then Judicial Magistrate, Hazaribagh took cognizance of the offence under Section 420 of the Indian Penal Code against the petitioner. 2. The facts giving rise to this application are that the complainant-opposite party No.2 filed a complaint case No. 649 of 2009 before the Chief Judicial Magistrate, Hazaribagh stating therein that he had entered into an agreement with this petitioner for sale of an under construction flat, situated at am Enclave, Hazaribagh for a consideration of Rs.9 lacs and as against that, a sum of Rs.1.61 lacs was paid in advance. As per the registered agreement, delivery of possession of the flat was supposed to be given on or before 2nd week of April, 2009, after receiving the remaining consideration amount. 3. It is also the case of the complainant that the complainant with permission of the petitioner made investment of Rs.80,000/- in furnishing the flat but before expiration of the period of registration of the sale-deed, a legal notice was given by the petitioner whereby he declined to execute sale-deed on the ground of breach of certain conditions. 4. It has also been alleged that the statement which had been made in the notice was defamatory. That notice was replied but the petitioner refused to receive the said notice. 5. Under the circumstances, it has been alleged that the petitioner cheated the complainant by accepting advance money and then refusing to execute sale-deed and thereby he committed offence of cheating. 6. The Court after holding enquiry found, that prima facie, case of cheating is made out and hence, took cognizance of the offence under Section 420 of the Indian Penal Code. That order is under challenge. 7. Learned counsel appearing for the petitioner submits that the complainant against the terms and conditions of the agreement took possession of the flat by trespassing into the said apartment of his own choice without making full payment of the consideration money but till date, the petitioner has not handed over the said flat to the complainant. That the petitioner is ready to return the amount which has been given by the complainant with Bank interest, as per the terms and conditions of the agreement. 8. That the petitioner is ready to return the amount which has been given by the complainant with Bank interest, as per the terms and conditions of the agreement. 8. Learned counsel further submits that in any view of the matter, the case is of civil dispute and under the circumstances, question of committing offence of cheating does not arise and hence, the impugned order is fit to be set aside. 9. Learned counsel in support of his submission has relied upon a decision rendered in a case of Dilip Kaur and others v. Jagnar Singh and another, AIR 2009 SC 3191 . 10. As against this, learned counsel appearing for the opposite party No.2 submits that even in a case of civil dispute, if the allegation does constitutes criminal offence, one can maintain the criminal prosecution and therefore, the instant prosecution never warrants to be quashed as some element for attracting criminal liability is there as the petitioner not only has retained the money but has also refused to execute the sale deed and this shows the mens rea on the part of the petitioner for commission of the offence of cheating. 11. Learned counsel in support of his submission has referred to a decision rendered in a case of Pratibha v. Rameshwari Deviand others, (2008) 1 SCC (Crl) 399 and also in a case of Iridium India Telecom Limited v. Motorola Incorporated and others, (2011) 1 SCC 74 . 12. It be stated that the Hon’ble Supreme Court in case of State of Haryana v Bhajan Lal, (1992) Supp (1) SCC 335 has been pleased to lay down certain categories of the cases by way of illustrations wherein inherent power under Section 482 of the Code can be exercised either to prevent abuse of the process of any Code or otherwise to secure ends of justice. One of such categories is:- "Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused." 13. In the context of the principle laid down one needs to consider as to whether allegation made in the complaint does constitute offence of cheating or not? 14. In the context of the principle laid down one needs to consider as to whether allegation made in the complaint does constitute offence of cheating or not? 14. 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". 15. 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. 16. 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? 17. 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. 17. 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 being deceived by the petitioners in any manner. 18. In a case of Iridium India Telecom Limited v. Motorola Incorporated and others (supra), relied upon by the opposite party, the Hon'ble Supreme Court taking notice of Section 415 of the Indian Penal Code has been pleased to hold that deception is a necessary ingredient for the offence of cheating under both parts of the section. So far other case relied upon is concerned, there has been no doubt that if the facts constitute civil liability as well as criminal liability, then the remedy available for civil law cannot be a ground for quashing of the criminal proceeding which proposition of law has also been laid down by the Hon'ble Supreme Court in a case of Indian Oil Corporation v. NEPC India Limited and others, (2006) 6 SCC 736 but ax the same time, it has also been observed by the Hon'ble Supreme Court that there is a growing tendency in business circle to convert purely civil dispute into criminal cases. This is obviously on account of the prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. Such tendency is seen in several family dispute also leading to irretrievable brake down of marriages/families. There is also an impression that if a person could somehow be entangled into a criminal prosecution, there is likelihood of imminent settlement. It has emphatically been said by the Hon'ble Supreme Court in the said decision that any effort to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged. 19. It has emphatically been said by the Hon'ble Supreme Court in the said decision that any effort to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged. 19. Having come to the conclusion that the allegation made in the complaint does not constitute offence of cheating, the entire criminal case including the order dated 13.7.2009 taking cognizance is hereby quashed. 20. In the result, this application is allowed. Application allowed.