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2017 DIGILAW 898 (ALL)

Rajesh Bhatia v. State of U. P.

2017-03-30

ANIL KUMAR SRIVASTAVA II

body2017
JUDGMENT : 1, Heard Sri Murli Manohar Srivastava, learned counsel for the petitioner, Sri Manish Bajpai, assisted by Sri Punit Saxena, learned counsel for opposite party no.2 as well as learned AGA for opposite party no.1 and perused the record. 2. Petition has been preferred to quash the proceedings of Complaint Case No.180 of 2006 (Gopal Krishna vs. Dr. Rajesh Bhatia), under Section 420 IPC, Police Station Gomti Nagar, Lucknow pending before the Court of Additional Judicial Magistrate, Court No.37, Lucknow and judgment and order dated 9.8.2007 passed by the learned Sessions Judge in Criminal Revision No.233 of 2007; Dr. Rajesh Bhatia vs. State & Ors. whereby the revision was dismissed and summoning order passed by learned Magistrate on 26.6.2007 was confirmed. 3. A complaint was filed by opposite party no.2 with the allegations that the opposite party no.2 is a retired Central Government Employee. He contacted the petitioner for the operation of his eyes as well as eyes of his wife namely, Smt. Rani Sinha. Opposite party no.2 asked that an expenditure of Rs.13,000/-has to be incurred in the operation and the receipt would be given but receipt of only Rs.900/-was given. Payment of Rs.13,000/-was made by Rajesh Sinha son of opposite party no.2 through Cheque No.531072 dated 16.7.2005 from the account of ICIC Bank, Gomti Nagar, Lucknow. Operation was not successful, although an amount of Rs.13,000/-was received by the opposite party no.2 but only receipt of Rs.1800/- was given. Legal notice was issued. 4. On the basis of this complaint opposite party no.2 was examined under Section 200 Cr.P.C. and his son Rajesh Sinha under Section 202 Cr.P.C. Learned Magistrate summoned the petitioner under Section 420 IPC. 5. Feeling aggrieved, revision was preferred before the learned Sessions, Lucknow which was dismissed by the learned Sessions Judge on 9.8.2007 holding that the revision against the summoning order is not maintainable. 6. Feeling aggrieved, petitioner has filed the petition under Section 482 Cr.P.C. challenging both the orders. 7. Learned counsel for the petitioner submits that the learned Magistrate has illegally summoned the accused as there was no evidence or material available on record to summon the petitioner to face trial under section 420 IPC. It was further submitted that admittedly a cheque was issued by the opposite party no.2 which was duly received by the petitioner and was deposited in his account which was credited. It was further submitted that admittedly a cheque was issued by the opposite party no.2 which was duly received by the petitioner and was deposited in his account which was credited. It is submitted that no receipt of Rs.13,000/-was issued by the petitioner rather the same was issued by the Mayo Hospital, Gomti Nagar, Lucknow wherein the petitioner is a visiting doctor. It is submitted that the case of the petitioner is purely civil in nature wherein a complaint was also filed before the Consumer Forum which was dismissed. 8. Learned counsel for the petitioner has placed reliance upon the decision in the case of Devendra and Ors. vs. State of Uttar Pradesh and Another (2009) 7 Supreme Court Cases 495, Joseph Salvaraj A vs. State of Gujarat reported in AIR 2011 Supreme Court 2258,and judgment of learned Single Judge of this Court in case of Dharmendra Singh & Ors. vs. State of U.P. & another [2011 (1) JIC 446(All)]. It is submitted that necessary ingredients of the offence of cheating as defined 415 IPC are not made out. 9. Learned counsel for opposite party no.2 submits that on the inducement of the petitioner cheque was issued by the opposite party no.2 wherein it was accepted by the petitioner that he would issue a receipt of Rs.13,000/-. It is submitted that opposite party no.2 is a retired Central Government Employee who gets the reimbursement of the amount incurred by him in the treatment of himself and his wife. On the inducement of petitioner cheque was issued but a receipt of only Rs.900/-was issued whereby the petitioner has committed an offence of cheating. It is further submitted that the learned Magistrate has rightly exercised his jurisdiction in summoning the accused-petitioner to face trial. 10. It is an admitted case that a cheque of Rs.13,000/-was issued by the opposite party no.2 in favour of the petitioner. It is also admitted that cheque was deposited in the account of the petitioner and was credited in the account. The only allegations regarding the receipt of the cheque which according to the petitioner was not required to be given by him as he has issued a receipt in lieu of the receipt of cheque on the letter head pad. While the case is that only receipt of Rs.900/-was issued. The only allegations regarding the receipt of the cheque which according to the petitioner was not required to be given by him as he has issued a receipt in lieu of the receipt of cheque on the letter head pad. While the case is that only receipt of Rs.900/-was issued. It is pertinent to mention here that the cheque was not issued in the name of Mayo Hospital, Mayo Medical Centre Private Limited, it was issued in the name of the petitioner, which was duly credited in his account. It is not the case that petitioner is denying the receipt of the cheque. So far as medical reimbursement is concerned, it is governed by the relevant rules as applicable to the concerned employee. 11. Section 415 IPC defines cheating which is reads as under:- 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". 12. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section. Illustrations 13. In Devendra case (supra) the Hon'ble Apex Court has referred the in V.Y. Jose v. State of Gujarat and Anr. [ (2009) 3 SCC 78 ], this Court opined: "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 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. 15. 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. 15. 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." 16. The same view was reiterated in the case of V.Y. Jose (Supra) which reads as under: "25. Mr. Das, furthermore, would contend that the order of the High Court dated 17.10.2005 would operate as res judicata. With respect, we cannot subscribe to the said view. The principle of res judicata has no application in a criminal proceeding. The principles of res judicata as adumbrated in Section 11 of the Code of Civil Procedure or the general principles thereof will have no application in a case of this nature. 26. The High Court has refused to quash a First Information Report as a different standard there for was required to be applied. However, when materials are collected and a charge sheet is filed on the basis whereof the Magistrate takes cognizance of the offence, the same would give rise to a new cause of action. An order taking cognizance of an offence on the basis of a charge sheet filed by the investigating officer and/or directing issuance of summons on a complaint petition, indisputably, would attract the provisions of Section 482 of the Code of Criminal Procedure if a case has been made out for invocation thereof." 17. The dispute does not relate to the issue that cheque was not issued or it was not received or deposited in the bank account rather it is to the extent only that receipt for Rs.900/-was issued by the petitioner as alleged in the complaint filed by the opposite party no.2. It is further relevant that receipt was not issued by the petitioner. Further, the learned Magistrate was required to record the satisfaction on the basis of the evidence led by the complainant. It is further relevant that receipt was not issued by the petitioner. Further, the learned Magistrate was required to record the satisfaction on the basis of the evidence led by the complainant. A cryptic order is passed without applying judicial mind, in the case of Nirmaljit Singh Hoon v. State of West Bengal and another, 1973 (10) ACC 181 (SC) while considering the scheme of sections 200, 203 Cr.P.C., it has been held by the Hon'ble Apex Court that Section 203 Cr.P.C. does not say that a regular trial for adjudging the truth or otherwise of the accusation made against the accused should take place at that stage. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials, there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. 18. In the case of Chandra Deo Singh v. Prakash Chandra Bose, I964 (1) SCR 693, the Hon'ble Apex Court held that at the stage of enquiry under Section 202 Cr.P.C., the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of Smt. Nagwwa v. Veeranna Shivalingappa Konjalgi and ohers, 1976 (1) ACC 225 (S.C.) while considering the scope of enquiry under Section 202 Cr.P.C., the Hon'ble Apex Court has held that it is extremely limited only to the ascertainment of truth or falsehood of the allegations made in the complaint (a) on the basis of the materials placed by the complainant before the Court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value made out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. 19. 19. In the case of S.W. Palanitkar and others vs. State of Bihar and another, 2002 (44) ACC 168 (S.C.), the Hon'ble Apex Court has held that at the stage of passingorder under Section 203 Cr.P.C. searching sufficient ground to convict is not necessary. 20. In the present case, the Magistrate concerned, after considering the evidence recorded under Sections 200 and 202 Cr.P.C. has concluded that prima facie a case is made out against the applicants and as such the applicants have been summoned as accused. A perusal of the aforesaid statements reveals that the applicants have, prima facie, not committed offence and in these circumstances it cannot be held that the Magistrate has not committed any illegality or impropriety in passing the impugned order. 21. The dispute relates to the receipt of the cheque even if it is accepted then it will be a dispute of the civil nature because the necessary ingredients of Section 415 IPC as has been held by the Hon'ble Apex Court in Devendra (Supra) are not made out and no false representation was made. There is no inducement that a receipt which is allegedly issued by Mayo Hospital should have been issued by the petitioner. 22. Considering all the facts and circumstances and the discussion made above, keeping in view the law laid down by Hon'ble the Apex Court in State of Haryana and others vs. Ch. Bhajan Lal and Others 1992 Supp(1) SCC 335, wherein Hon'ble the Apex Court has specifically held that the extraordinary jurisdiction under Section 482 Cr.P.C. can be invoked where there is a case of misuse of process of law. Application of mind by the Magistrate should be reflected from the cognizance orders. 23. It would be the case of misuse of process of law, accordingly, petition deserves to be allowed, and is accordingly allowed. Proceedings of Case No.180 of 2006 (Gopal Krishna vs. Dr. Rajesh Bhatia) pending before the Court of Judicial Magistrate, Court No.37, Lucknow as well as summoning order dated 26.6.2007 and the order of the Sessions Judge, Lucknow dated 9.8.2007 are hereby quashed.