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Jharkhand High Court · body

2012 DIGILAW 758 (JHR)

Kumar Ranjeev v. State of Jharkhand

2012-05-15

R.R.PRASAD

body2012
ORDER By the Court. - Heard learned counsel appearing for the petitioners, learned counsel for the opposite party No. 2 as well as learned counsel for the State. 2. On amongst the other the order dated 19.06.2007, passed by the learned Judicial Magistrate, 1st Class. Bokaro in C.P. Case No. 597 of 2005, whereby and whereunder cognizance of the offence has been taken under/Section 418 of the Indian Penal Code are under challenge. 3. The case of the complainant as it appears from the complaint petition is that the complainant gave a friendly loan of Rs.1,00.000/- to the petitioner (accused No.1), a childhood friend of the complainant. The brother (accused No.2) and the father (accused No. 3) of the petitioner stood guarantor for repayment of the amount. At the time of taking loan, a post dated cheque was given by the petitioner. Since the cheque was dated 20.10.2004, it was intended to be presented before the Bank after 20.10.2004, for its encashment, but before its presentation, the accused persons asked the complainant to present it before the Bank in the month of January, 2005. However, in the month of January, 2005, the petitioner again persuaded the complaint to present it after some time. However, the cheque on its presentation got dishonoured. Thereupon, a complaint was lodged, alleging therein, that the petitioners have committed offence under Sections 418 and 420 read with Section 120-B of the Indian Penal Code. That complaint got dismissed. 4. Being aggrieved with the order, dismissing the complaint, the complainant preferred a revision application which was allowed, whereby, the matter was remanded for further enquiry. Thereupon, the cognizance of the offence under Sections 418/134 of the Indian Penal Code was taken against the petitioners which is under challenge. 5. Mr. Dev, learned counsel appearing for the petitioners submits that even If the allegations are taken to be true no offence of cheating is made out as the petitioners have never been alleged to have induced the complainant fraudulently and dishonestly to part with the money rather as per the allegation, the complainant had given friendly loan and thereby, if this allegation is accepted that the petitioners took loan, but did not return the amount, no offence of cheating is made out. It best it can be a case of civil liability. 6. Mr. It best it can be a case of civil liability. 6. Mr. Thakur learned counsel appearing for the opposite party No. 2 submits that whatever plea has been taken in support of the case of the petitioners that no offence of cheating is made out, that can be raised during trial, as this Court at this point of time would not be an appropriate forum to raise this issue. 7. It was further submitted that fraudulent intention would be gathered from the fact that whenever, the complainant did approach to the accused informing him that he is intending to present the cheque, the accused persons prevented the complainant to present the cheque, before the bank and thereby, the dishonest intention appears to be there right from the beginning to cheat the complainant. 8. In the context of the submissions advanced on behalf of the parties, one needs to consider as to whether the 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 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." 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. (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 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. 12. Applying the said principle constituting a criminal offence of cheating in the context of the allegation. it does appear that the very first element of deception constituting an offence of cheating is completely lacking as nowhere the allegations made in the complaint do indicate about the complainant being deceived by the petitioners in any manner and that the accused ever induced the complainant fraudulently and dishonestly to part with the money. 13. It has also been well-settled that the intention of cheating should be right from the beginning and if something is done subsequently contrary to promise that would not be factor for determining the intention which was there at the time of inception of the contract. Therefore, even if the allegation is there that whenever the complainant did approach to the accused, the accused prevented the complainant to present the cheque will not be relevant to draw inference as to whether the petitioner had dishonest intention right from the beginning to cheat the complainant. 14. Accordingly. I do find that no offence is made out under Section 418 of the Indian Penal Code and hence order dated 19.06.2007. under which, cognizance of the offence was taken against the petitioner is hereby, set aside. 15. In the result, this application stands allowed. Application allowed.