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2012 DIGILAW 670 (JHR)

Nand Lal Mahto v. State of Jharkhand

2012-04-30

R.R.PRASAD

body2012
Judgment Heard counsel for the parties. 2. This application has been filed for quashing the entire criminal proceeding of C.P. Case No. 852 of 2007 including order dated 24.08.2007 passed by the then S.D.J.M., Dhanbad whereby and whereunder cognizance of offences was taken under Sections 406 and 420 of the Indian Penal Code. 3. The facts which have given rise to this application are that the complainant had invested a sum of Rs. 40,000/on 26.06.2002 in a special term deposit in the State Bank of India, AMY Damkara Branch. The said amount rose to Rs.50,730/on the date of maturity i.e. on 26.06.2005. When the complainant came to the bank to take the said amount the bank Manager refused to make payment on one pretext or the other and therefore, when a legal notice was given to the bank Manager, it was replied by him that the amount which was to be paid has been adjusted towards the amount taken on loan by Nand Lal Mahto (petitioner) for whom he had stood guarantor by depositing STDR as collateral security for the loan granted to Nand Lal Mahto but before making adjustment the bank had never given information of it. When he asked Nand Lal Mahto in this regard, he stated that he has already paid a sum of Rs.45,191/to him which was far from truth. Thus, it has been alleged that the bank Manager as well as this petitioner had misappropriated the amount and thereby they have committed offence of misappropriation and cheating. ' 4. On such allegation, the cognizance of offence was taken under Sections 406 and 420 of the Indian Penal Code. 5. In the facts and circumstances of the case, the question does arise as to whether the allegation made in the complaint does constitute offence of cheating and criminal breach of trust. ' 4. On such allegation, the cognizance of offence was taken under Sections 406 and 420 of the Indian Penal Code. 5. In the facts and circumstances of the case, the question does arise as to whether the allegation made in the complaint does constitute offence of cheating and criminal breach of trust. The offence of cheating has been defined 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 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”. 6. Following are the ingredients for constituting of 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. 7. 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. 8. In a case of Iridium India Telecom Limited Vs Motorola Incorporated and others [ (2011) 1 SCC 74 ], the Hon'ble Supreme Court has been pleased to hold that the deception is a necessary ingredient for the offence of cheating under both parts of the Section. 9. 8. In a case of Iridium India Telecom Limited Vs Motorola Incorporated and others [ (2011) 1 SCC 74 ], the Hon'ble Supreme Court has been pleased to hold that the deception is a necessary ingredient for the offence of cheating under both parts of the Section. 9. 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 petitioner in any manner. 10. So far offence under Section 406 of the Indian Penal Code is considered, that also does not appear to have been made out against the petitioner. Criminal breach of trust has been defined under Section 405 of the Indian Penal Code which reads as follows: “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.” 11. On reading of 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.” 12. None of the ingredients as mentioned above is there to constitute an offence under Section 405 of the Indian Penal Code so far this petitioner is concerned as the petitioner has never been alleged to have been entrusted with any money or property nor the petitioner has been alleged to have been misappropriated that money rather according to the case of the complainant the money had been entrusted with the bank. Accordingly, the allegation under Section 406 of the Indian Penal Code also does not get attracted. Thus, the order taking cognizance certainly suffers from irregularity. 13. Accordingly, order dated 24.08.2007 under which cognizance of the offence has been taken against the petitioner is hereby, quashed. 14. In the result, this application is allowed.