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2015 DIGILAW 290 (JHR)

Banshi Modak v. State of Jharkhand

2015-02-21

RONGON MUKHOPADHYAY

body2015
JUDGMENT : By Court: Heard Mr. Mahesh Tewary, learned counsel appearing on behalf of the petitioner and Mr. Awanikant Prasad, learned counsel for the State. No one appears on behalf of the opposite party No. 2. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with C.P. Case No. 126 of 2002 including the order dated 6.8.2002 passed by the learned Judicial Magistrate, Bokaro, whereby and whereunder, cognizance has been taken for the offence punishable u/s 420 of the Indian Penal Code (IPC). 3. It appears that a complaint case was instituted by the complainant/ opposite party No. 2 in which it was stated that the petitioner was known to the opposite party No. 2 from before and that the petitioner was running a transport business and had inducted several tenants in his building. On account of intimacy of the petitioner with the complainant/ opposite party No. 2, the petitioner had approached the complainant to given him a loan of Rs. 30,000/-on the assurance that the same would be returned back as early as possible. It was further submitted therein that the petitioner had stated to the complainant/ opposite party No. 2 that he had huge amount lying in Bokaro Steel Limited and since on account of his non-payment of his bills, his capital amount is blocked and as such he was in need of money for payment to his staff and labourers and for other expenses. An amount of Rs. 8,500/-and an amount of Rs. 14,000/-was given to the petitioner on two separate dates, but when inspite of lapse of few months, the petitioner did not return the amount he was approached by the complainant/ opposite party No. 2 and ultimately he gave an undertaking in writing on stamp paper that he has taken Rs. 22,500/-from the complainant and the same shall be returned back within a period of 6 months. It has further been stated that inspite of the undertaking given by the petitioner when the amount was not returned back, pleader's notice was served upon the petitioner to which reply was given in which it was stated that he had taken a loan of Rs. 15,000/-and he had also paid by three installment of Rs. 9000/-and only Rs. 6,000/-is lying balance with him. 15,000/-and he had also paid by three installment of Rs. 9000/-and only Rs. 6,000/-is lying balance with him. On being deceived by the petitioner inspite of his assurance that the amount of loan would be returned to the complainant/ opposite party No. 2, he has filed a complaint case which was registered as C.P. Case No. 126 of 2002. 4. After initiation of the complaint case, an enquiry was conducted u/s 202 of the Code of Criminal Procedure (Cr. P.C.) by examining the complainant on solemn affirmation as also his witnesses and pursuant thereto vide order dated 6.8.2002, the learned Judicial Magistrate, Bokaro was pleased to take cognizance for the offence punishable u/s 420 of the Indian Penal Code (IPC). 5. The learned counsel for the petitioner has submitted that perusal of the complaint petition does not reveal any criminal intent on the part of the petitioner to cheat the complainant/ opposite party No. 2 and it has also falsely been alleged by the complainant/ opposite party No. 2 that the amount is lying with the petitioner. He has further submitted that no offence of cheating is made out and if the complainant has any grievance he has an option for redressal of his grievance before an appropriate civil forum. 6. The learned counsel for the State on the other hand has submitted that on the assurance of the petitioner that the loan shall be returned back within the shortest possible time, Rs. 22,500/-was given to the petitioner by the complainant/ opposite party No. 2, but inspite of a written undertaking, the amount was not returned back, rather it has been falsely alleged by the petitioner that only Rs. 6,000/-is lying due to him of the complainant/ opposite party No. 2. In such view of the matter, the present application is liable to be dismissed. 7. After hearing the learned counsel for the parties and after going through the records, I find that in the complaint petition itself it has been stated by the complainant that on account of good terms which has been existing between the petitioner and the opposite party No. 2 and on assurance by the petitioner, an amount of Rs. 22,500/-was given to the petitioner as loan. From the complaint petition it further reveals about the reply to the pleader's notice by the petitioner in which it was stated that he had taken Rs. 22,500/-was given to the petitioner as loan. From the complaint petition it further reveals about the reply to the pleader's notice by the petitioner in which it was stated that he had taken Rs. 15,000/-and out of which Rs. 9,000/-in three equal installments was returned to complainant/ opposite party No. 2 whereas Rs. 6000/-is still left to be paid. It thus appears that it is purely a case of monetary transaction between the petitioner and the opposite party No. 2. So far as the ingredients of cheating are concerned, the complaint petition does not reveal that there was an act of deception on the part of the petitioner from the very inception. In the counter affidavit which has been filed by the opposite party No. 2 it has been stated that the said averments made in the main application is wholly wrong and misconceived, but as has been indicated above, the complainant in his petition has clearly stated about the fact with respect to the reply by the petitioner to the legal notice served upon him by the opposite party No. 2 that he had taken Rs. 15,000/-and out of which Rs. 9,000/-in three equal installments were returned to the complainant/ opposite party No. 2 whereas Rs. 6000/-is still left to be paid. 8. The learned counsel for the petitioner on the point of cheating and deception has relied upon the case of Suraj Nandan Prasad v. State of Bihar (Now Jharkhand) reported in 2007(4) JCR 474 (Jhr.) and the case of Neelam Lata v. State of Jharkhand & another reported in 2010(4) JCR 407 (Jhr.). In the case of Suraj Nandan Pandey (supra) it was held that for establishing the charge u/s 420 I.P.C., it is necessary that there should be a direct connection between the false representation and delivery of the property for doing something by the person deceived. It is also held that the element of deception is an essential ingredient of Section 420 I.P.C. In the case of Neelam Lata (supra) while considering the essential ingredients of Section 420 I.P.C. it has been held as follows:- "9. Having noticed the provisions following ingredients are necessary to be there to constitute offence under Section 420: (1) there should be fraudulent or dishonest inducement of a person by deceiving him. Having noticed the provisions following ingredients are necessary to be there to constitute offence under Section 420: (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 person, 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 caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 10. Therefore, 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 cannot be made out. After deception has been practiced, the person deceived should get induced to do or omit to do something. Then, the question arises as to what is deception? in the ordinary sense deception has in it the element of misleading or making a person believe something that is false. According to Webster's New International Dictionary the work deceived indicates inculcating of one so that he takes the false s true, the unreal as existent, the spurious genuine." 9. In the case at hand nowhere it has been averred by the petitioner that no loan was taken by him and the entire allegations were denied and disputed. It is apparent that the complainant/ opposite party No. 2 claimed that he had given a loan of Rs, 22,500/-to the petitioner whereas the petitioner has specifically stated that he had taken Rs. 15,000/-only out of which Rs. 9,000/-was returned to the complainant/ opposite party No. 2 in three equal installments. Thus there does not appear to be an act of deception on the part of the petitioner to mislead the complainant/ opposite party No. 2. Since the dispute is itself with respect to the exact amount of the loan and there being no criminal intent on the part of the petitioner as would appear from the perusal of the complaint petition, the appropriate course available for the complainant/ opposite party No. 2 was to move before a Civil Court of competent jurisdiction for redressal of his grievance. It is a settled law that certain facts may lead to both civil wrong as well as a criminal offence, but the main factor which is to be seen is whether from the complaint petition any criminal intent is made out as against the accused person or not. 10. As has been indicated above, since the dispute is with respect to the amount of loan which was given to the petitioner by the complainant/ opposite party No. 2 and in view of the fact that the complainant had tried to project a criminal offence under the cloak of a civil wrong, continuance of present criminal prosecution as against the petitioner will amount to abuse of process of Court. Even otherwise, the complainant has failed to show that the intention of the petitioner to deceive the complainant was from the very beginning of the transaction. 11. Accordingly, this application is allowed and the entire criminal proceeding in connection with C.P. Case No. 126 of 2002 including the order dated 6.8.2002 passed by the learned Judicial Magistrate, Bokaro, whereby and whereunder, cognizance has been taken for the offence punishable u/s 420 of the Indian Penal Code (IPC) is quashed.