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Jharkhand High Court · body

2012 DIGILAW 555 (JHR)

Muslim Khan v. State of Jharkhand

2012-04-12

R.A.PRASAD

body2012
JUDGMENT By Court.-Heard the parties. 2. This application has been filed for quashing of the entire criminal proceeding of C.P. Case No. 1232 of 2000 including the order dated 23.11 .2000 passed by the then Judicial Magistrate, Dhanbad whereby and whereunder, cognizance of the offences punishable under Sections 418 and 420 of Indian Penal Code has been taken against the petitioner. 3. The case of the complainant, as has been made out in the complaint petition, is that the complainant took loan from the UCO Bank, Sudamdih against the fixed deposit receipt and paid to the petitioner a sum of Rs. 1,50,000/- on the assurance that the money will be returned back within two months but when the petitioner did not return the money within the stipulated time, the complainant again demanded but the petitioner refused to pay the money. On such allegation, a complaint bearing C.P. Case No. 1232 of 2000 was registered under Sections 418 and 420 of Indian Penal Code against the petitioner. After holding enquiry, the court took cognizance of the offence punishable under Sections 418 and 420 of Indian Penal Code against the petitioner. That order is under challenge. 4. Mr. Chatterjee, learned counsel appearing for the petitioner, submits that even if the entire allegations are taken to be true, no offence is made out under Sections 418 and 420 of Indian Penal Code and hence the instant prosecution is fit to be quashed. 5. As against this, Mr. Sarkhel, learned counsel appearing for the complainant-opposite party no. 2, submits that when the petitioner had promised that he would be returning the money, the complainant took loan against the fixed deposit receipt and paid a SUIT of Rs.1,50,000/- to the petitioner but he did not return the money and, therefore, It can be said that right from the beginning the petitioner had intention to cheat the complainant and thereby the order taking cognizance never warrants to be interfered with by this Court. 6. 6. In context of the submission, one needs to take notice of the provision as contained in 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 person 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'." 7. 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 person, 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". 8. 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? 9. 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. 9. 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 elemi of deception attracting an offence of cheating is lacking as nowhere the allegation made in the complaint do indicate about• the complainant being deceived fraudulently or dishonestly by the petitioner in any manner. 10. Accordingly, the entire criminal proceeding, including the order dated 23.11.2000 passed by the then Judicial Magistrate, Dhanbad in C.P. Case No. 1232 of 2000 under which cognizance of the offence has been taken against the petitioner under Sections 418 and 420 of Indian Penal Code, is hereby quashed. 11. In the result, this application is allowed.