Abinash Kumar Ojha vs State of Jharkhand and another

R.R. Prasad

Heard learned counsel appearing for the petitioner, learned counsel appearing for the State and also learned counsel appearing for the opposite party no. 2. This application has been filed for quashing of the order dated 27.1.2010 passed in connection with Jamtara P.S. Case no. 31 of 2009 (G.R No. 78of 2009) whereby and whereunder cognizance of the offences punishable under Sections 406 and 420 of the Indian Penal Code and also u/s 138 of the Negotiable Instrument Act has been taken against the petitioner and others.

The case of the complainant/informant is that the accused no. 1 Nagendra Prasad Ojha, father of the petitioner and also this petitioner made representation before the complainant that they are intending to sell a piece of land over which one incomplete room is existing. The complainant in order to verify the said fact came to the house of the accused no. 1 where the accused no. 1 again communicated to the complainant that they are intending to sell that piece of land having incomplete structure over there, upon which a sum of Rs. 1,72,000/- was paid to the father of this petitioner but subsequently, accused no. 1, father of this petitioner never executed sale deed and when the complainant asked them to return the money, they not only refused to return the money but also declined to execute the sale deed. However, upon much insistence the accused no. 1 gave Rs. 1,72,000/- which on its deposit got bounced. Thereafter demand was made through notice and when it was not paid, a complaint bearing P.C.R case no. 45 of 2009 was registered under Sections 420, 406, 120B), 468 of the Indian Penal Code and also u/s 138 of the Negotiable Instrument Act. The complaint was sent u/s 156(3) for its institution and investigation. Upon which Jamtara P.S. Case no. 31 of 2009 was registered. Having investigated upon, the police submitted charge sheet under Sections 420 and 406 of the Indian Penal Code and u/s 138 of the Negotiable Instrument Act, upon which cognizance of the offence was taken which order is under challenge.

Learned counsel appearing for the petitioner submits that the petitioner has been made accused for the simple reason that he happens to be the son of accused no. 1 and that at one point of time, he had accompanied to his father, when the father made representation before the complainant that he intend to sell a piece of land and that apart, no allegation whatever is there regarding any misrepresentation being made by the complainant under which complainant was deceived and further petitioner is not the person who had issued cheque which got dishonored and under this situation, the offence under which cognizance has been taken does not get attracted against the petitioner and therefore, the order taking cognizance is fit to be set aside.

As against this, learned counsel appearing for the opposite party no. 2 submits that this petitioner and also his father when on representing that they will be selling a piece of land, the complainant agreed to purchase the said land and for that a sum of Rs. 1,72,000/- was paid to the father of this petitioner and this fact has been stated by number of witnesses, who were examined during course of investigation. Under this situation, the petitioner cannot escape liability for being prosecuted under Sections 406 and 420 of the Indian Penal Code.

Learned counsel further submits that in similar manner brother of the complainant has been deceived by the petitioner as well as his father.

Having heard learned counsel appearing for the parties, it does appear that it is the case of the complainant that the petitioner as well as his father made representation before the complainant that they would be selling a piece of land, upon which complainant agreed to purchase that piece of land and then Rs. 1,72,000/- was paid not to this petitioner but to the father of the petitioner who never executed sale deed. Under the circumstances, the question does arise as to whether any offence either u/s 406 or 420 of the Indian Penal Code and also u/s 138 of the Negotiable Instrument Act ever gets attracted against the petitioner.

The offence of cheating has been defined u/s 415 of the Indian Penal Code which reads as follows:

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 persons 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.

From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating.

(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 persons, 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 causes or is likely to cause damage or harm to the person induced in bodily or reputation or property.

Thus, 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 never gets attracted. After deception has been practiced the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception ?

In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the principle constituting a criminal offence of cheating in context of the allegation it does appear that first element of deception constituting an offence of cheating is lacking as nowhere the allegations made in the complaint do indicate about the complainant being deceived by the petitioners in any manner. He has never been alleged to have induced the complainant fraudulently and dishonestly to part with the money.

In a case of Iridium India Telecom Ltd. Vs. Motorola Incorporated and Others, , the Hon''ble Supreme Court taking notice of Section 415 of the Indian Penal Code has been pleased to hold that deception is a necessary ingredient for the offence of cheating under both parts of the Section. It be stated that if the facts constitute civil liability as well as criminal liability, then the remedy available for civil law cannot be a ground for quashing of the criminal proceeding which proposition of law has also been laid down by the Hon''ble Supreme Court in a case of Indian Oil Corporation Vs. NEPC India Ltd. and Others, but at the same time, it has also been observed by the Hon''ble Supreme Court that there is a growing tendency in business circle to convert purely civil dispute into criminal cases. This is obviously on account of the prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. Such tendency is seen in several family dispute also leading to irretrievable brake down of marriages/families. There is also an impression that if a person could somehow be entangled into a criminal prosecution, there is likelihood in imminent settlement. It has emphatically been said by the Hon''ble Supreme Court in the said decision that any effort to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged.

In the instant case as I have stated earlier that necessary ingredients constituting offence of cheating is lacking as the petitioner has never made any misrepresentation fraudulently or dishonestly inducing the complainant to make payment and as such, no offence is made out u/s 420 of the Indian Penal Code. At the same time, offence u/s 406 of the Indian Penal Code in the facts and circumstances of the case does not get attracted.

The offence of criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under:

Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discouraged, or of any legal contract, express or implied, which he has made touching the discharge off such trust, or willfully suffers any other person so to do, commits "criminal breach of trust.

Thus, for constituting offence u/s 405 again there should be dishonored intention to misappropriate the amount and it should be right from the beginning which is lacking in this case.

Further the question of committing offence u/s 138 of negotiable act does not arise as the petitioner has never been allowed to have issued the cheque in favour of the comp lainant which got bounced, rather that allegation upon the father of the petitioner.

Under the circumstances, the order 27.1.2010 is hereby quashed. In the result, this application is allowed.