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Jharkhand High Court · body

2014 DIGILAW 239 (JHR)

Narayan Chakraborty v. State of Jharkhand

2014-02-12

R.R.PRASAD

body2014
Order Heard the parties. This application has been filed for quashing of the order dated 30.11.2012 passed in C.P. Case No. 545 of 2012 whereby and whereunder, cognizance of the offences punishable under Sections 406 and 420 of Indian Penal Code has been taken against the petitioner. 2. Before adverting to the submissions advanced on behalf of the parties, the case of the complainant needs to be taken notice of. 3. It is the case of the complainant that this petitioner and Samarpan Chakraborty approached the complainant and conveyed him that they have started a project whereby they will be allotting small plots to the persons who would be intending to purchase it and then they will be constructing duplex over there. At the same time, it was stated that a lot of money is required for making payment to the labourers. On that pretext they told him to give a sum of Rs. Four lakhs which they promised to return it by 30.1.2011 and if they will be failing in returning the same, they would be transferring 10 Kathas of land of Mouza No. 6 appertaining to Khata No. 196 and Plot No. 7 to him and that apart, they will be constructing a Duplex over there. The complainant believing the version of the accused persons to be true paid a sum of Rs. Four lakhs. Simultaneously, the accused persons executed a deed of agreement to the effect stated above. Thereupon, further sum of Rs. 1,60,000/-was paid to the petitioner. Later on the complainant came to know that the land, which had been promised to be transferred, was Gair Abad land whereas it had been conveyed him that the said land is raiyati land. 4. In that event, when the complainant approached the accused persons to ask for money, they not only refused to return the money but also assaulted him. 5. On such allegations, a complaint case was lodged, which was registered as C.P. Case No. 545 of 2012 under Sections 406, 420, 386, 467, 468, 471, 417 and 120B of Indian Penal Code. 6. After holding inquiry, the court took cognizance of the offences punishable under Sections 406 and 420 of Indian Penal Code vide order dated 30.11.2012, which order is under challenge. 7. Mr. 6. After holding inquiry, the court took cognizance of the offences punishable under Sections 406 and 420 of Indian Penal Code vide order dated 30.11.2012, which order is under challenge. 7. Mr. Shailesh, learned counsel appearing for the petitioner, submits that it is simple case of the complainant that the petitioner did enter into an agreement with the complainant whereby a sum of Rs. Four lakhs was taken with a promise that if the petitioner would fail to return it by the time stipulated therein, he will be transferring the part of the land in favour of the complainant. If the petitioner failed to keep the promise either of returning money or executing sale deed, it will not constitute a criminal offence much less the offence either under Section 406 or 420 of the Indian Penal Code. 8. Further, it was submitted that if the case of the complainant is accepted that the petitioner had promised to transfer the land which was communicated at that time as a raiyati land but it was found to be a Gairabadi land, it will hardly make any difference as the petitioner can even transfer that land if he is in possession of that land in view of the decision rendered in a case of Ramesh Dutt and others Vs. State of Punjab and others {2009(81) AIC 183 (SC)}. Under the situation, the instant case becomes a case of civil dispute and thereby the court has committed illegality in taking cognizance of the offences. 9. As against this, learned counsel for the opposite party no. 2 submits that this is a clear cut case where the complainant has been deceived by the petitioner, as it had been conveyed by the accused persons that they will be transferring the land which is in the nature of raiyati land belonging to them but that land was a Gairabadi land and, therefore, the court cannot be said to have committed any illegality in taking cognizance of the offence punishable under Sections 406 and 420 of Indian Penal Code. 10. 10. In the context of the submissions advanced on behalf of the parties, one needs to take notice of the provision as contained 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”. 11. 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. 12. 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. Then, the question arises as to what is the deception? 13. 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. 14. 13. 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. 14. Applying the said principle constituting a criminal offence of cheating in context of the allegation made in the complaint giving rise to this case, it does appear that complainant paid money when it was represented by the petitioner that he will be transferring a piece of raiyati land if he will be failing in returning back the money. Said raiyati land, as claimed by the petitioner, was found to be a Gairabadi land. 15. In such situation, one would find prima facie a case of deception and as such, I do not find any illegality in the order taking cognizance. 16. Accordingly, I do not find any merit in this application and hence, this application stands dismissed. 17. Before parting with this order, it be stated that any finding recorded for disposal of this case may not be prejudicial to the case of the parties. Application dismissed.