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2012 DIGILAW 423 (JHR)

Ajay Kumar v. State of Jharkhand

2012-03-22

R.R.PRASAD

body2012
JUDGMENT By Court: Nobody appeared either on behalf of the petitioner or on behalf of the opposite party no.2. 2. However, having heard learned learned counsel appearing for the State and on perusal of the record, I do find that this application has been filed for quashing of the order dated 10.5.2001 passed by the then Judicial Magistrate, Jamshedpur in C/1 case no.320 of 2000 whereby the whereunder cognizance of the offences punishable under Sections 406 and 420 of the Indian Penal Code has been taken against the petitioner. 3. The case of the complainant as it appears from the complaint petition is that the petitioner being Branch Manager of the company, namely, Gati Cargo Management Services offered to sell vehicle (trailer) for a sum of Rs.4,01,000/-. The complainant accepted the offer and paid a sum of Rs.11,000/-as part payment on 3.4.1999. Subsequently, on 22.5.1999 further a sum of Rs.20,000/-was paid, for which receipts were granted but vehicle was never delivered to the complainant in spite of repeated request. On such allegation, a complaint was filed which was registered as C/1 case no.320 of 2000 under Sections 420 and 406 of the Indian Penal Code. 4. After holding enquiry, learned Magistrate took cognizance of the offences punishable under Sections 420 and 406 of the Indian Penal Code which is under challenge. 5. The grounds on which the impugned order has been challenged are that no offence of cheating or criminal breach of trust is made out even if the entire allegations made out in the complaint are accepted to be true. The complainant had only made part payment of the total consideration amount of Rs.4,01,000/-and therefore, the complainant was intimated through a letter to make payment of the entire amount so that delivery of the vehicle be given to him. In the said letter, it had been communicated that if the balance amount would not be deposited, the amount which has been paid would be forfeited but nothing was done by the complainant.. 6. However, learned counsel appearing for the State submits that the petitioner having accepted the money on behalf of the company neither did deliver the vehicle nor return the money and thereby the court below has rightly taken cognizance of the offences as aforesaid. 7. 6. However, learned counsel appearing for the State submits that the petitioner having accepted the money on behalf of the company neither did deliver the vehicle nor return the money and thereby the court below has rightly taken cognizance of the offences as aforesaid. 7. It be stated that the Hon'ble Supreme Court in case of State of Haryana vs. 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.” 8. 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 ? 9. 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”. 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. Then, the question arises as to what is the deception ? 12. 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. 13. In a case of Iridium India Telecom Limited vs. Motorola Incorporated and others (supra), 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. 14. Thus, I do find that the allegation do not constitute offence punishale under Section 420 of the Indian Penal Code. 15. So far as the offence under Section 406 of the Indian Penal Code is concerned, that also does not appear to have been made out against the petitioner. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under: “405. 15. So far as the offence under Section 406 of the Indian Penal Code is concerned, that also does not appear to have been made out against the petitioner. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under: “405. Criminal breach of trust -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”. 16. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. (a) a person should have been entrusted with property or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” 17. In the background of the allegation made in the complaint, I do find that no offence of criminal breach of trust is made out. Hence, the order dated 10.5.2001 under which cognizance of offences has been taken against the petitioner is hereby quashed. 18. In the result, this application is allowed.