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2012 DIGILAW 648 (JHR)

Gomati Singh v. State of Jharkhand

2012-04-26

R.R.PRASAD

body2012
JUDGMENT By Court. - Heard the parties. 2. This application has been filed for quashing of the order dated 4.11.2000 passed in Complaint Case No. 763 of 2000 by the then Judicial Magistrate 1st Class Jamshedpur whereby and whereunder cognizance of the offence punishable under Sections 420, 379 and 406/34 of Indian Penal Code has been taken against the petitioners. 3. Before adverting to the submission advanced on behalf of the parties, facts giving rise to this application need to be taken notice of. 4. It is the case of the complainant that he after purchasing a truck bearing No. HR 38-7260 has given it to petitioner No.1-Regional Manager of M/s. Precious Carrying Corporation Ltd., Jamshedpur for transporting the consignment from Jamshedpur to Kalambali, Maharashtra on a freight of Rs.36.200/-. That truck in course of coming to Malambali got stuck up at Nagpur on account of some mechanical defect. information of which was given to the complainant who on 25.12.1999 permitted the petitioners to arrange another truck and to take consignment to its destination and also asked them to return the truck but the petitioners did not return the truck rather went on plying it and earned Rs.800 per day and thereby the petitioners retained it till 10.8.2000 when it was repossessed by the Financer. 5. On such complaint, cognizance of the offence as alleged, was taken vide order dated 4.11.2000, which is under challenge. 6. Mr. P.P.N. Roy, learned senior counsel for the petitioners, submits that when the truck got stuck up at Nagpur, information was given immediately the complainant but he did not take any decision in the matter of transaction of consignment to Kalambali. After passing of so many days, the complainant on 25.12.1999 asked the petitioners to arrange for another truck and to transport the consignment to Kalambali for which assurance was given that the complainant would bear expenses for it, but inspite of demand being made of the expenses incurred by the petitioners, it was never paid and that apart, the petitioners had already paid a sum of Rs.32,000/- as against the total amount of freight of Rs.36,320 and in that circumstance, it is the complainant who cheated the petitioners whereas the petitioners have never cheated the complainant and thereby the order taking cognizance is quite bad and is fit to be set aside. 7. As against this. Mr. 7. As against this. Mr. S.N. Prasad, learned counsel for the opposite party No.2-complainant submits that it is true that the truck got stuck up at Nagpur and when information of it was given, the complainant asked the petitioners to arrange for a truck and to transport the consignment, to its destination but at the same time. he asked the petitioners to return the truck but instead of returning it he went on using the said truck by which he earned Rs.800 per day till 10.8.2000 when it was repossessed by the Financer and thereby the petitioners not only committed offence under Section 420 of Indian Penal Code but also under Section 406 of Indian Penal Code by retaining the truck from 25.12.1999 to 10.8.2000 and under this situation, the order taking cognizance never warrants to be interfered with. 8. In the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegation made in the complaint does constitute offence of cheating and misappropriation 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 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". 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. (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 including of one so that he takes the false as true the unreal 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. At this stage, it would be appropriate to refer a case of Iridium India Telecom Limited v. Motorola Incorporated and others, 2011 (1) SCC 74 , whereby 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. As I have already observed that necessary ingredients are lacking constituting offence of cheating, it be recorded that no offence of cheating is made out even if the entire allegations made in the complaint are taken to be true. 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. 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 coverts 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 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 covert 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 not find it a case of criminal breach of trust rather it is a pure case of breach of agreement which could have been agitated in the competent Court of civil jurisdiction, as in the facts and circumstances of the case, the petitioners cannot be said to have had fraudulent or dishonest intention right from beginning of dishonest misappropriation. 18. Further, since the truck was taken on hire with permission of the complainant, the question of committing offence under Section 379 of Indian Penal Code never arises. 19. Under the circumstances, entire criminal proceeding, including the order dated 4.11.2000 passed by the then Judicial Magistrate, 1st Class. 18. Further, since the truck was taken on hire with permission of the complainant, the question of committing offence under Section 379 of Indian Penal Code never arises. 19. Under the circumstances, entire criminal proceeding, including the order dated 4.11.2000 passed by the then Judicial Magistrate, 1st Class. Jamshedpur in Complaint Case No. 763 of 2000 under which cognizance of the offence punishable under Sections 420, 379 and 406/34 of Indian Penal Code has been taken against the petitioners is hereby quashed. 20. In the result, this application is allowed. Application allowed.