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2013 DIGILAW 192 (JHR)

Dipak Ranjan v. State of Jharkhand

2013-02-06

R.R.PRASAD

body2013
Order Heard learned counsel appearing for the petitioners and learned counsel appearing for the Opposite Party No. 2 as well as learned counsel appearing for the State. 2. This application has been filed for quashing of the order dated 24.1.2012 passed in Complaint Case No. 2312 of 2011, whereby and where under, cognizance of the offences punishable under Sections 420 and 406• of the Indian Penal Code has been taken against the petitioners. 3. Before adverting to the submissions advanced on' behalf of the parties, the case of the complainant needs to be taken notice of. 4. It is the case of the complainant that the complainant was a monthly tenant in a building belonging to M/s Ram Das and Son. The other day these petitioners who had been engaged by the owner of the building to construct a r(1ultistoried building as well as owner came to him and told that they are proposing to construct a multi-storied building over that piece of land over which building was exiting in which he was tenant. He was asked to vacate the premises on a condition that he will be provided with sufficient accommodation at the rate of Rs. 3501per square feet. When the proposal was accepted by the complainant, aforesaid three stakeholders entered into a tripartite agreement on 18.2.2003. In terms of that agreement, the Complainant vacated the premises. When multi-storied building was built over it, the complainant approached to these petitioners to give possession over one of the flats at the rate agreed upon between them, these petitioners avoided it on one pretext or the other. Ultimately it was communicated to him that the value of the flat got escalated. 5. Further case is also that while entering into an agreement, promise had also been made by these petitioners to pay rental of the flat which the complainant will be taking on rent which promise had been carried out by the petitioners. 6. Further it has been alleged that the petitioners' did not give possession of the flat rather they sold almost all the flats of the building and thus, it has been alleged that the complainant has been , cheated by these petitioners. 7. On such allegation, a case was registered as Complaint Case No. 2312 of 2011, in which cognizance of the offence' punishable under Sections. 7. On such allegation, a case was registered as Complaint Case No. 2312 of 2011, in which cognizance of the offence' punishable under Sections. 420 and 406 of the Indian Penal Code was taken vide order dated 24.1.2012 which is under challenge in this application. 8. Mr. Sarkhel, learned counsel appearing for' the petitioners submits that accepting the entire allegation made in the complaint to be true, no offence whatsoever is made out either under Section 406 or Section 420 of the Indian Penal Code as the petitioners on the face of the allegation cannot be said to have deceived the complainant fraudulently. 9. Further it was submitted that if the possession of the flat has not been given to the complainant, at best it would amount to breach of contract and hence, the petitioners are not liable to be prosecuted criminally and, therefore, the order taking cognizance is fit to be quashed. 10. As against this, Mr. Singh, learned Senior Counsel appearing for the Opposite Party No.2 by referring to the statements made in Paragraph Nos. 4, 9 and 14 of the complaint petition, submitted that the petitioners and also the landowner had misrepresented him that he will be provided with a flat, if over the same land, multi-storied building is constructed after he vacates the house which was existing from before. On such misrepresentation, the complainant vacated the house and when the building was completed, the possession was never given to him in terms of the agreement entered into in between the parties and thereby, the petitioners can certainly be said to have committed offence under which cognizance of the offence has been taken. 11. In the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegations made in the complaint does constitute offences of cheating and criminal preach of trust or not? 12. 11. In the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegations made in the complaint does constitute offences of cheating and criminal preach of trust or not? 12. 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 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"." 13. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating:- (1) there should be fraudulent 'OL. 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. 14. Thus, the first element necessary for constituting 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? 15. 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. 16. 15. 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. 16. Applying the principle constituting a criminal offence of cheating in the 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 fraudulently or dishonestly rather it seems to be a case of simple breach of contract. 17. At this stage it would be appropriate to refer a case of Iridium India Telecom Limited vs. Motorola Incorporated and Ors. [ (2011)1 SCC 74 ], wherein the Hon'ble Supreme Court after 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. 18. It has been observed by the, Hon'ble Supreme Court in case of Indian Oil Corporation V$. NEPC India Ltd. [ (2006)6 SCC 736 ], that there has been a growing tendency in business circle to convert purely civil dispute into criminal cases. This is obviously on account of the prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. Such tendency is seen in several family disputes also leading to irretrievable brake down of marriages/famlies. There is also an impression that if a person could somehow be entangled into a criminal prosecution, there is likelihood in imminent settlement. It has emphatically been said by the Hon'ble Supreme Court in the said decision that any effort to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged. 19. Perhaps on account of this tendency A lodging a criminal case, even in case of civil liability, there has been marked decline in filing of civil suits causing loss to' revenue of State Government on account of unutilization of court fee. 20. 19. Perhaps on account of this tendency A lodging a criminal case, even in case of civil liability, there has been marked decline in filing of civil suits causing loss to' revenue of State Government on account of unutilization of court fee. 20. 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. 21. 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 petitioners. 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 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"." 22. 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 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." 23. 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 enforced in the competent court of civil jurisdiction. 24. 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 enforced in the competent court of civil jurisdiction. 24. Under the circumstances, as aforesaid, entire criminal proceeding of Complaint Case No. 2312 of 2011 including the' order taking cognizance dated 24.1.2012 is hereby, quashed so far the petitioners are concerned. 25. In the result, this application stands allowed.