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2017 DIGILAW 1444 (ORI)

Indrani Mitra v. State of Orissa

2017-12-12

B.K.NAYAK

body2017
JUDGMENT B.K.NAYAK, J. - The petitioners have filed this application under Section 482, Cr.P.C., challenging the order dated 27.01.2016 passed by the learned S.D.J.M., Bhubaneswar in ICC Case No.2095 of 2015 taking cognizance of offence under Section 420/34, IPC and directing issuance of process against the petitioners. 2. The present Opposite Party No.2 is the complainant in the complaint case. She filed the complaint against her two brothers and sister. The present petitioners are accused Nos.1 and 3 in the said complaint case. Initially the complaint was forwarded to Sahidnagar P.S. under section 156 (3), Cr.P.C. which was registered as FIR. After investigation, police submitted final report, whereupon the present Opposite Party No.2 (complainant) filed protest petition which has been registered as the present complaint case. 3. The allegations of the complainant in the complaint petition are that after the death of the father of the parties on 22.11.2003, their mother submitted an application and affidavit dated 18.01.2005 in the Office of the CESU, Sahidnagar, Bhubaneswar for transfer of the existing electric connection of the house from the name of the late father of the parties to her own name. The said affidavit was purported to be that of the legal heirs of the deceased father of the parties, in which it was stated that they have no objection for transfer of the electric connection to the name of their mother. The complainant’s allegation is that she has not given her signature in that affidavit and that her purported signature on the affidavit was forged one. It is further alleged in the protest petition that after getting Xerox copy of the affidavit from the office of CESU through RTI, the complainant sent a letter to the Investigating Officer on 20.07.2013 stating that all the signatures (those of the complainant and the accused persons) on the affidavit were forged but the police took no action. 4. It is further alleged in the protest petition that after getting Xerox copy of the affidavit from the office of CESU through RTI, the complainant sent a letter to the Investigating Officer on 20.07.2013 stating that all the signatures (those of the complainant and the accused persons) on the affidavit were forged but the police took no action. 4. Learned Counsel for the petitioners submitted that the allegations in the complaint petition and the initial statement of the complainant even if accepted as true, do not make out an offence under Section 420/34, IPC, since the alleged forgery of the signature of the complainant is on an affidavit indicating no objection of the signatories thereon for transfer of electricity connection of the house in question to the name of the mother of the parties from that of their father, and that by itself cannot be said to be a case of cheating of any person. It is further submitted that there being no allegation that the accused persons in the complaint case forged the signature of the complainant on the affidavit, they cannot be held liable for the offence. 5. Opposite Party No.2 (complainant), who conducted the case personally, submitted that petitioner No.2, who is accused No.3 in the Court below (the youngest brother) was staying in the house concerned in respect of which the electricity connection was changed to the name of the mother of the parties after the death of the father, and that in all probability he must have the knowledge as to who submitted the affidavit and who obtained the legal heir certificate. 6. Section 420, IPC provides the punishment for the offence of cheating and thereby dishonestly inducing to deliver property. The offence of cheating has been defined in Section 415 which is quoted hereunder : “415. 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 person 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”. 7. 7. From the aforesaid definition the ingredients of the offence of cheating are that there must be a deception of a person by the accused, who must fraudulently or dishonestly induce such person to deliver any property to any person, or to consent that such other person shall retain any property, or intentionally induces the person so deceived to do or omit to do any thing, which act or omission causes or is likely to cause damage or harm to the person deceived in body, mind, reputation or property. 8. The allegations in the complaint petition and the initial statement of the complainant in the instant case relate to submission of an affidavit in the office of CESU bearing signatures including that of the complainant, giving consent to the transfer of electric connection of the house to the name of the mother of the parties. Therefore, it is apparent that nobody induced the complainant to do or omit to do anything by practicing deception which ultimately would affect her right to property. Mere change of the name of consumer of electricity in respect of a house does not by itself determine the right of ownership over that property. Since the consent in the affidavit was for change of the name of the consumer of electricity from that of the father to the name of the mother, the accused persons thereby do not stand to gain anything. There is also no allegation in the complaint or in the initial statement that it is the accused person or any of them who forged the signature of the complainant on the so-called affidavit. Fraudulent or dishonest intention of the accused persons is not made out from the allegations. In the circumstances, prima-facie no offence of cheating with the common intention of the accused persons is made out. Therefore, the impugned order taking cognizance of offence under Section 420/34. IPC against the accused persons in the complaint case is legally unsustainable. Accordingly, I allow the CRLMC and quash the impugned order of cognizance. The CRLMC is thus disposed of. CRLMC disposed of.