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Jharkhand High Court · body

2012 DIGILAW 427 (JHR)

Parvati Devi v. State of Jhakhand

2012-03-22

R.R.PRASAD

body2012
ORDER 1. By Court-Heard learned counsel appearing for the petitioners and learned counsel for the State. 2. This application has been filed for quashing of the entire criminal proceeding of complaint case bearing C 1 Case No. 720 of 2000, including the order dated 31.1.2001, whereby and whereunder the then learned .Judicial Magistrate, Jamshedpur, took cognizance of the offences punishable under Sections 465, 420 and 323/34 of the Indian Penal Code against the petitioners. 3. The facts giving rise to this application are that the complainant lodged a complaint case, stating therein that the house, standing over the Plot Nos. 31 and 32 appertaining to Khata No. 372, situated at Munshi Mohalla, Makdampur, within Parsudih P.S. was belonging to her maternal uncle, Late Srinath Sahai who in his lifetime, had given the house to the complainant. After his death, the complainant being the only legal heir and successor inherited the property i.e. house, in question. After the death, she came in possession over the said property. 4. It is also the case that during lifetime, late Srinath Sahai had let out two rooms to accused Nos. 4 to 8 who except accused No. 4 (since died) are the petitioners alongwith accused No.1 to 3. 5. Further case is that accused Nos. 4 to 8 were paying rental to the complainant, but they, at the instigation of accused No.1 stopped making payment of the rent. The other day, all the accused persons made an attempt to occupy the room of the complainant by force, but they failed in their attempt. When they did not succeed, they approached the complainant and his father for having some kind of settlement. They arrived at, a settlement that the property would be disposed of and the amount will be equally distributed between the accused No.1 and the complainant. On such settlement being arrived at, accused No.3 (daughter of accused No.1) sold the property vide sale deed dated 24.7.2000, whereby the complainant and her father were made witnesses to the execution of the deed. Thereupon, the complainant demanded Rs. 40,000/- which came to her share, but accused Nos.1 to 3, who are the petitioners here refused to make payment and even they assaulted the complainant. On such allegation, the complaint was lodged which was registered as C 1 Case No. 720 of 2000. 6. Thereupon, the complainant demanded Rs. 40,000/- which came to her share, but accused Nos.1 to 3, who are the petitioners here refused to make payment and even they assaulted the complainant. On such allegation, the complaint was lodged which was registered as C 1 Case No. 720 of 2000. 6. After holding inquiry, cognizance of the offences was taken under Sections 465, 420 and 323 of the Indian Penal Code, which is under challenge. 7. Mr. Sarkhel, learned counsel appearing for the petitioners submits that even accepting the entire allegation to be true, no case either of cheating or forgery is made out and hence, order taking cognizance is quite bad. It was submitted that it is absolutely wrong on the part of the complainant to say that the petitioner No.1 (accused No.1) was the maid servant rather she happened to be the wife of the deceased (Late Srinath Sahay) which fact would be evident from number of documents which have been annexed with this application and, therefore, entire allegation which have been leveiled in the complaint petition is false. 8. It was further submitted that even if the allegation levelled against the petitioners is accepted to be true that a sum of Rs. 40,000/- which according to the complainant came to her share was not given, does not make out any case of cheating or forgery. 9. Mr. Ravi Prakash, learned counsel appearing for the State submits that the complainant has been cheated by the accused persons as 50% of the sole amount under the agreement was to be paid to the complainant, but the accused persons after selling the property retained the money which was payable to the complainant as her share. 10. Having heard learned counsel appearing for the parties it is to be considered as to whether allegations made in the complaint do make out a case of cheating or forgery. 11. 10. Having heard learned counsel appearing for the parties it is to be considered as to whether allegations made in the complaint do make out a case of cheating or forgery. 11. The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows:- Cheating-Whoever, by deceiving any persons, 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". 12. 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. 13. Thus, the first element necessary for constituting the offence of cheating is 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? 14. In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating 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. 14. In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating 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 the very first element of deception for 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. 15. Thus, I do find that no offence punishable under Section 420 is made out. So far offence under Section 465 is concerned, there does not appear to be any ingredient for constituting offence punishable under Section 465 of the I.P.C. 16. Accordingly, the entire criminal prosecution including the order dated 31.1.2001, under which cognizance was taken against the petitioners in connection with C 1 Case No. 720 of 2000, is hereby quashed.