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2013 DIGILAW 771 (HP)

Santosh Kumari v. Anil Chauhan

2013-08-26

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (Oral): Challenge herein is to the order dated 19th March, 2011, passed by learned Judicial Magistrate 1st Class, Nadaun, District Hamirpur, in Complaint No.17-I of 2005, whereby, while arriving at a conclusion that no case under Section 420 and 120-B of the Indian Penal Code is made out against any of the respondents, hereinafter referred to as “the accused persons”, the complaint has been dismissed. 2.The indulgence of this Court for quashing and setting aside the impugned order has been sought on the sole ground that the preliminary evidence produced by the complainant (petitioner herein) discloses the commission of cognizable offence, punishable under Sections 420 and 1 20-B IPC against the accused persons, however, the Court below, without appreciating the same in its right perspective, has erroneously concluded to the contrary that no case against any of them is made out from the material available on record. 3.The dispute is qua the rights of the complainant and other persons over Abadi Deh bearing Khasra No.759, 776 and 779. Complainant claims her share in the said Abadi Deh. She made a representation to the Settlement Officer, Dharamshala through her son and General Attorney Shri Raj Kumar Jain, with the prayer to enter Abadi Deh in joint ownership of all concerned, including herself, for their common use. On the said representation, the Settlement Officer sought report of accused No.1, who happened to be the Settlement Tehsildar at the relevant time. Accused No.1 fixed several dates, including 28.5.2003 vide notice Ext. CW1/A, knowing fully well that he had already sent the report to the Settlement Officer and on the basis thereof, a decision had also been taken on 6.2.2003 in the matter and mutation of Abadi Deh was also already attested on 12.3.2003. 4.The complaint, therefore, is that accused persons in connivance with each other, cheated the complainant by showing the inquiry pending before accused No.1 intentionally and deliberately and knowing fully well that the report sought by the Settlement Officer on the representation of the complainant, was already sent. 5.Learned trial Magistrate after recording the preliminary evidence and taking into consideration the material on record has concluded that no case under Section 420 and 120-B IPC is made out against any of the accused persons for issuance of process against them and as such dismissed the complaint. 6. 5.Learned trial Magistrate after recording the preliminary evidence and taking into consideration the material on record has concluded that no case under Section 420 and 120-B IPC is made out against any of the accused persons for issuance of process against them and as such dismissed the complaint. 6. What constitutes the offence of cheating, punishable under Section 420 of the Act, has been discussed by the Apex Court in V.Y. JOSE & another Vs. STATE OF GUJARAT & another, which reads as follows: “14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: “(i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.” For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.” 7. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.” 7. Adverting to the allegations in the complaint, the complainant in order to disclose the commission of an offence punishable under Section 420 of the Indian Penal Code has made three folds submissions; firstly, that she had submitted a representation to the Settlement Officer, Dharamshala with the prayer to enter Abadi Deh bearing Khasra Nos.759, 776, & 777 in common pool for being used by the co-sharers for their common use, secondly, on the representation, the Settlement Officer had sought the report from accused No.1 and lastly, irrespective of such report having already been sent by the said accused to Settlement Officer, he, with a view to deceive the complainant, kept on giving date after date upto 28.5.2003 and in this regard pressed in service notice Ex.CW-1/A. 8.If not shocking, it is surprising to note that in the evidence the complainant neither produced the copy of the representation nor any order passed thereon by the Settlement Officer, Dharamshala, asking for the report of accused No.1 nor produced the Kanoongo who had signed the notice Ex.CW-1/A on behalf of Tehsildar Settlement, to establish that it is this very case, which alone was adjourned to 28.5.2013 by accused No.1. 9.As a matter of fact, it is the representation and the order, if any passed thereon by the Settlement Officer, as well as the Kanoongo, who had signed notice Ex.CW-1/A, could have been of immense help to infer the disclosure of the commission of a cognizable offence by the accused persons. In the absence of such evidence, mere statement of her attorney CW-1 Raj Kumar that it is this very case which was adjourned to 28.5.2003 by accused No.1 is not sufficient to disclose the commission of offence under Section 420 IPC against any of the accused persons. Therefore, an adverse inference has to be withdrawn against the complainant on account of withholding such evidence. Therefore, an adverse inference has to be withdrawn against the complainant on account of withholding such evidence. 10.In the absence of the representation and the order passed thereon by the Settlement Officer showing that it was qua the report of accused No.1 submitted to the Settlement Officer, the statement of CW-2 Kamal Kumar is also not sufficient to disclose the commission of offence under Section 420 IPC against any of the accused persons. CW-3 Pradeep Rattan, Advocate no doubt had issued the legal notice Mark-A, however, the same has appropriately been replied by accused No.1 vide reply Mark-B. 11.Therefore, learned trial Judge has neither committed any illegality nor irregularity while dismissing the complaint, as in view of the material available on record, no case against any of the accused persons is made out and to the contrary taking of cognizance in the matter and issuance of process would have amounted to abuse of process of law, besides being harsh and oppressive to the accused persons. While arriving at this conclusion, I am taking support of the judgment of Apex Court in Maksud Saived Vs. State of Gujrat, (2008) 5 SCC 668 , which reads as follows: “15. This Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [ (1998) 5 SCC 749 ], held as under: “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 12.What, therefore, emphasized is that the complaint must disclose commission of a cognizable offence from the material available on record. The same, however, is lacking in the case in hand. 13.As regards the grouse that after submission of report by accused No.1 and the order passed by the Settlement Officer on 6.3.2003, even mutation of the land in dispute was sanctioned on 12.3.2003 in the name of several persons including Smt. Usha Devi, a dead person, the complainant, if so advised, is at liberty to challenge the same before appropriate forum. 14.So far as the allegation that the accused persons having connived with each other cheated the complainant is concerned, nothing has been brought on record. 15.Therefore, having regard to the given facts and also the material available on record, I find no merit in this petition and the same is accordingly dismissed.