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2020 DIGILAW 477 (GAU)

Chabin Das v. State Of Assam

2020-05-12

MANISH CHOUDHURY

body2020
JUDGMENT Manish Choudhury, J. - This criminal petition is preferred under Section 482, Code of Criminal Procedure, 1973 (CrPC) seeking quashing of the First Information Report (FIR) dated 29.08.2019 lodged before the Officer In-Charge, Bhangagarh Police Station and which has been registered as Bhangagarh Police Station Case no. 350/2019 under Section 420, Indian Penal Code (IPC). 2. Heard Mr. B. Gogoi, learned counsel for the petitioner and Mr. B.B. Gogoi, learned Additional Public Prosecutor for respondent no. 1, State of Assam. There is no representation on behalf of the respondent no. 2 today on call. From the records, it is found that when on the previous date of listing i.e. 30.04.2020, none had appeared for the respondent no. 2 it was observed that order would be passed on the next date fixed, 12.05.2020 irrespective of the presence of the said respondent. From the records it is also revealed that the learned counsel for the respondent no. 2 had entered appearance on 19.11.2019 and their names are reflected in the cause-list. In view of the above, the matter is taken up for consideration. 3. The learned counsel for the petitioner, referring to the contents of the FIR, has submitted that even if all the statements and allegations made in the said FIR are accepted to be true, no ingredients attracting the offence under Section 420, IPC can be said to be demonstrated. The dispute between the respondent no. 2 and the petitioner is in respect of a shop which the petitioner used to occupy as a tenant. The respondent no. 2 had lodged the FIR when he found a new electric meter installed near the shop of which the petitioner is the tenant. No person has been named in the FIR specifically who had installed the said new electric meter. The learned Additional Public Prosecutor has submitted that the respondent no. 2 had alleged bad intention behind installation of the new electric meter. 4. I have considered the submissions of the learned counsel for the parties and perused the contents of the FIR. 5. The principles to be followed as regards quashing of a First Information Report (FIR) are well settled. 2 had alleged bad intention behind installation of the new electric meter. 4. I have considered the submissions of the learned counsel for the parties and perused the contents of the FIR. 5. The principles to be followed as regards quashing of a First Information Report (FIR) are well settled. In the decision of State of Haryana vs. Bhajan Lal, (1992) Supp1 SCC 335 , the Supreme Court has indicated about seven categories of cases, by way of illustration, wherein the inherent powers under Section 482, CrPC can be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice, with the rider that it may not be possible to lay down any precise, clearly-defined guidelines or rigid formulae and to give an exhaustive list of cases wherein such power should be exercised. It is observed therein as under : wxyz "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers u/s 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. zyxw wxyz (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. zyxw wxyz (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. zyxw wxyz (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. zyxw wxyz (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. zyxw wxyz (4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code. zyxw wxyz (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. zyxw wxyz (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. zyxw wxyz (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." zyxw 6. The FIR at issue has been registered for the offence under Section 420, IPC. The FIR at issue has been registered for the offence under Section 420, IPC. While Section 415, IPC defines cheating Section 420, IPC defines cheating and dishonestly inducing delivery of property. Section 415, IPC and Section 420, IPC read as follows :- wxyz 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". zyxw wxyz Explanation. A dishonest concealment of facts is a deception within the meaning of this section. zyxw wxyz 420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. zyxw 7. To appreciate the submission of the learned counsel for the parties, it is necessary now to refer to the FIR lodged by the respondent no. 2. In the said FIR, the respondent no. 2 has averred that he is the owner and possessor of a plot of land located in Village No. 2, Japorigog, District Kamrup (M), as the said plot of land has stood mutated in the names of his parents. He has stated that he has constructed a RCC building and one Assam type house including some shop rooms on the said plot of land. It is further stated that he had rented 3 nos. of shops to 3 (three) persons viz. (1) Sri Sankar Paul, (2) the petitioner, and (3) Sri Hitesh Das. It was stated that Sri Sankar Paul had been running his business in the shop room rented to him but the other two shop rooms were kept locked by the other two tenants including the petitioner, without informing him. of shops to 3 (three) persons viz. (1) Sri Sankar Paul, (2) the petitioner, and (3) Sri Hitesh Das. It was stated that Sri Sankar Paul had been running his business in the shop room rented to him but the other two shop rooms were kept locked by the other two tenants including the petitioner, without informing him. Having seen the new electric meter installed in between the other two shop rooms on 29.08.2019, he, even after enquiry, could not find out the person behind installation of such new electric meter. Requesting enquiry to find out the person behind installation of the new electric meter, he has lodged the FIR. 8. The ingredients required to constitute the offence of cheating are :- (i) there should be fraudulent or dishonest inducement of a person with the practice of deception on him; (ii)(a) the person who is deceived should be induced to deliver any property to any person or to consent any person shall retain any property; or (b) the person who is deceived should be intentionally induced to or omit to do anything which he would not have omitted; (iii) In cases covered by (ii)(b) the act or omission should be one which is likely to cause damage or harm to the person induced in body, mind, reputation or property. 9. It is projected on behalf of the petitioner that the petitioner is a tenant under the respondent no. 2. A dispute arose between him and the respondent no. 2 with regard to the rent for the shop as the respondent no. 2 demanded a very high rent for it. The petitioner due to some difficulty on his part could not open the shop for a few months and the same was kept closed. The electrical connection to the shop was disconnected by the licensee, Assam State Electricity Board (ASEB) due to non-payment of bills and despite several requests made to the respondent no. 2, the electrical connection was not restored by him. In such situation, the petitioner had applied to the ASEB for a new connection and the ASEB had installed a new electrical connection in the third week of August, 2019. Immediately thereafter, the respondent no. 2 lodged the FIR. 2, the electrical connection was not restored by him. In such situation, the petitioner had applied to the ASEB for a new connection and the ASEB had installed a new electrical connection in the third week of August, 2019. Immediately thereafter, the respondent no. 2 lodged the FIR. The learned counsel for the petitioner, on instruction, has submitted that the petitioner subsequently had applied for disconnection with deposit of requisite fees with the ASEB and accordingly, the said new electrical connection provided to him was disconnected on 26.09.2019. 10. The electric connections to various consumers are provided by the licensee under the Electricity Act, 2003. In exercise of the powers conferred under the Electricity Act, 2003, a licensee frames supply code providing the procedure to obtain a new electric meter or an electric connection. Provision is available for a person even if he is not the owner of a premise but an occupier of a premise as a tenant, to apply to a licensee for a new electric meter and/or an electric connection subject to compliance of the terms and conditions laid down in the Electricity Act, 2003 and such a Supply Code framed by a licensee. If the provisions are available under the Electricity Act, 2003 for a tenant to apply and obtain a new electric meter and/or an electric connection, then the petitioner who himself stated to have obtained an electric connection with meter, cannot be said to have committed an offence. 11. Offence, in common parlance, denotes an act which is punishable under the law and an illegal act is ordinarily understood as an act what is contrary to or forbidden by law. If the new electric connection and installation of electric meter by the petitioner as a tenant, in compliance with the procedure prescribed had been obtained and subsequently disconnected, the same cannot be held to be contrary to law and consequently, an offence under the law. In such view of the matter, the ingredients of any offence, not to speak of the offence under Section 415, IPC and consequently, for the offence under Section 420, IPC are found lacking in the FIR lodged by the respondent no. 2. On a reading of the FIR, no allegation about practice of any deception by the petitioner on any person is found. No accusation of dishonest or fraudulent inducement is made by the respondent no. 2. On a reading of the FIR, no allegation about practice of any deception by the petitioner on any person is found. No accusation of dishonest or fraudulent inducement is made by the respondent no. 2 in the FIR. At best, for such act on the part of the petitioner, the respondent no. 2 may avail any remedy under civil side, but such act cannot, by any stretch, can take any criminal colour. The present case, in my considered view, falls in category (1) outlined in Bhajan Lal (supra). 12. In the light of the principles laid down in the aforesaid decision of the Supreme Court regarding the exercise of powers under Section 482, CrPC and the facts of the case as discussed above, this Court is of the considered opinion that continuing the criminal proceeding against the petitioner initiated with the institution of the FIR which has been registered as Bhangagarh Police Station Case No. 350/2019 would amount to an abuse of the process of the Court. As a result, this criminal petition stands allowed. Accordingly, in the interests of the justice, the FIR registered as Bhangagarh Police Station Case no. 350/2019 and the criminal proceeding arising therefrom on the basis of the said FIR are quashed. The petitioner is to be treated as discharged from the charge under Section 420, IPC. There shall, however, be no order to cost.