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Jharkhand High Court · body

2013 DIGILAW 437 (JHR)

Prem Kumar Tiwary v. State of Jharkhand

2013-04-03

R.R.PRASAD

body2013
Judgment Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party no.2. 2. This application has been filed for quashing of the order dated 9.6.2011 passed in Complaint Case No.106 of 2011 whereby and whereunder cognizance of the offences punishable under Sections 406, 420 of the Indian Penal Code has been taken against the petitioner and others. 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-opposite party no.2 that she along with her husband came to the showroom of M/s. Jayshree Ford Motors for purchasing a new car. There they selected one car and asked the Manager that they will be coming next day for taking its delivery. In the evening, Raj Kumar Agrawal, owner of M/s. Jayshree Ford Motors and also General Manage made a call on telephone to the complainant and conveyed her that one car belonging to this petitioner, Prem Kumar Tiwary is there in the showroom and it is meant for sale which she can inspect and may decide to purchase the same. The other day, the complainant along with her husband went to the showroom and did find Ford Fiesta car bearing registration no.JH-01W-6001 standing over there. There apart from the owner and the General Manager, this petitioner was also present. All the three persons said that the car would be sold at the price of Rs.5,50,000/-. The said amount was paid and it was told to them that delivery of the car would be given on the next day. On the next day, they delivered the car along with photocopies of owner book, insurance paper etc. along with one written agreement stating therein that within two months the car would be transferred and all the original paper relating to the car would be handed over to them as in the meantime, whatever amount is due to be paid to the Bank, it would be paid to the Bank. In spite of passing of two months, the accused persons did not transfer the car in the name of the complainant nor the original paper was given to her. 5. In spite of passing of two months, the accused persons did not transfer the car in the name of the complainant nor the original paper was given to her. 5. On such allegation, a complaint was lodged which was registered as Complaint Case no.106 of 2011 in which cognizance of the offences punishable under Sections 406, 420 was taken, vide order dated 9.6.2011 which is under challenge 6. Mr. Ananda Sen, learned counsel appearing for the petitioner submitted that though the statement has been made on solemn affirmation that the money was given to this petitioner but the money receipt which is part of the complaint petition which has been annexed as Annexure 1 would go to show that the money had been given to Sanjay Kumar Gupta and further from Annexure 2 which is written undertaking given by Sanjay Kumar Gupta, it would appear that it was Sanjay Kumar Gupta who had given undertaking that the car would be registered in the name of the complainant and all the original documents would be transferred within two months and thus, it is evident that the petitioner was nowhere in the picture at all in the matter of transaction of the car, still he has been made accused in this case. Since the petitioner had not made any misrepresentation to the complainant, he cannot be said to have committed any offence whatsoever under Section 406, 420 of the Indian Penal Code. 7. It was further submitted that no allegation is there in the complaint that the petitioner had induced the complainant fraudulently and dishonestly to part with the money for purchasing the car and if that allegation is not there, no offence is made out either under Section 406 or under Section 420 of the Indian Penal Code. 8. As against this, learned counsel appearing for the opposite party no.2 submitted that from the allegation made in the complaint, it would appear that this petitioner was there in the Company along with two accused persons, namely, Sanjay Kumar Gupta and Raj Kumar Agrawal when the complainant agreed to purchase the car for a sum of Rs.5,50,000/- and thereby it can easily be gathered that all the accused persons in conspiracy with each other cheated the complainant and thereby the order taking cognizance never warrants to be quashed. 9. 9. It was further submitted that the complainant in her statement made on solemn affirmation has categorically stated that the money was given to this petitioner, who has not been transferring the car in her name nor original documents are being given, the petitioner in conspiracy with other can certainly be said to have cheated the complainant. 10. It be stated that it is the case of the complainant that when it was conveyed to the complainant by Raj Kumar Agrawal, the owner of M/s. Jayshreee Ford as well as Sayjay Gupta, General Manager that one car belonging to this petitioner is there in the showroom for it sale, the complainant came to the showroom along with her husband and after making inspection decided to purchase that car for a consideration of Rs.5,50,000/- which was paid. From the money receipt which is part of the complainant petition, it would appear that money was paid to Sanjay Kumar Gupta and not this petitioner and therefore, any statement made by the complainant on solemn affirmation that the money was given to the petitioner cannot be accepted in view of the documentary evidence (Annexure 1). 11. Going into the matter further it is to be seen as to whether the allegation made in the compliant does constitute offence of cheating and criminal breach 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 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”. 13. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. 13. 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. 14. 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. 15. 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 petitioner in any manner as the petitioner has never been alleged to have induced the complainant to purchase the car. 16. Thus, necessary ingredients are lacking constituting offence of cheating. Therefore, one can easily come to conclusion that no offence of cheating is made out even if the entire allegations made in the complaint are taken to be true. 17. 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. 17. 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 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”. 18. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. 1. a person should have been entrusted with property or entrusted with dominion over property; 2. 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; 3. 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.” 19. 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. 20. Under the circumstances as aforesaid, entire criminal proceeding of complaint case no.106 of 2011 including the order dated 9.6.2011 under which cognizance of the offence has been taken is hereby set aside. 21. In the result, this application stands allowed.