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2015 DIGILAW 46 (ALL)

HARI KISHAN v. STATE OF U. P.

2015-01-12

MANOJ MISRA

body2015
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the applicant and the learned A.G.A. for the State and perused the record. The instant application for leave to appeal has been filed by the complainant under Section 378(4) Cr.P.C. against the judgment and order dated 17.10.2014 passed by Second Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Kairana, Muzaffarnagar in Complaint Case No. 424/9 of 2013, whereby the Court below acquitted the respondents 2 and 3 of the offences punishable under Sections 417 and 419 IPC. 2. A complaint was filed by the complainant against Janardan Swaroop and Pravesh Kumar Mittal alleging that complainant’s mother (Chamni Devi) died on 28.12.2008 leaving three sons, namely, Janardan Swaroop, Raj Kumar and the complainant (Hari Kishan). On her death, against plot Nos. 2537 and 3637, name of her sons was recorded in form PA 11 vide order dated 6.1.2009. It has been alleged that Janardan Swaroop, thereafter, set up a Will, alleged to have been executed by Chamni Devi, seeking mutation in his favour. On the aforesaid application for mutation, a case No. 344 of 2010 was registered in the Court of Tehsildar, Kairana. It is alleged that the summons issued by the Mutation Court were served by the process server on Pravesh Kumar Mittal (the nephew of the complainant) and, on the basis of said service of summons, mutation order was obtained by Janardan Swaroop. The complaint was filed alleging that Pravesh Kumar Mittal received the summons claiming himself to be nephew of the complainant even though he was not authorized to receive the summons and, therefore, he is guilty of an offence punishable under Sections 417 and 419 IPC inasmuch as he helped his father in obtaining ex parte order of mutation in his favour. 3. The summons, which were allegedly received by Pravesh Kumar Mittal, were brought on record. A perusal thereof revealed that Pravesh Kumar Mittal had received the summons in his own name and not by impersonating as the complainant. He had also signed his name in acknowledgment of receipt of the summons. 4. 3. The summons, which were allegedly received by Pravesh Kumar Mittal, were brought on record. A perusal thereof revealed that Pravesh Kumar Mittal had received the summons in his own name and not by impersonating as the complainant. He had also signed his name in acknowledgment of receipt of the summons. 4. The Court below, after recording the statement of the complainant as well as of the accused, came to the conclusion that Pravesh Kumar Mittal had not impersonated any person inasmuch as summons was received by him in his own name and there is no dispute that he was nephew of the complainant, therefore, it cannot be said that he had deceived any person or had committed an offence of cheating as defined under Section 415 IPC. Accordingly, the Court below acquitted the accused of the charge of offences punishable under Sections 417 and 419 IPC. 5. The submission of the learned counsel for the applicant is that the offence of cheating was made out because Pravesh Kumat Mittal was not authorized to receive summons, which was meant for the complainant and as, on account of erroneous service of those summons, ex parte order of mutation was obtained, the offence of cheating was complete. 6. I have given thoughtful consideration to the submission of the learned counsel for the applicant. However, I am unable to accept the above submission, inasmuch as, the alleged act of receiving the summons by Pravesh Kumar Mittal would not amount to cheating inasmuch as there was no deception on the part of the accused. He neither impersonated the complainant nor claimed himself as agent of the complainant. The record (the endorsement on the summons) reveal that the complainant was out of station therefore the process server served the summons on his nephew Pravesh Kumar Mittal. Whether Pravesh Kumar Mittal, who had received the summons, was authorized to receive the summons or not is a matter which was the concern of the process server.ýÿ Pravesh Kumar Mittal had received the summons disclosing his own identity and not as an impersonator or as an agent of the complainant. Accordingly, it cannot be said that by receiving the summons he had dishonestly or fraudulently deceived the process server. Accordingly, it cannot be said that by receiving the summons he had dishonestly or fraudulently deceived the process server. Whether the process server ought to have served the summons on Pravesh Kumar Mittal or whether the mutation Court ought to have accepted the service of summons as sufficient, on the basis of the service of summons on Pravesh Kumar Mittal, is a matter which is for the mutation Court to address to. The conclusion of the Court below therefore appears to be legally justified. In view of the above, I do not find any good reason to grant leave to appeal against the judgment and order of acquittal. The application seeking leave to appeal is, accordingly, rejected. The appeal stands dismissed. ——————