Ashok Jamna Dass Thakkar. vs Varinder Kumar and anr..

S.D. Bajaj. J.

Complaint annexure P. I translation whereof in court language is annexure P. 1/T, was filed by respondent No. 1 against the petitioner in Criminal Misc. No. 6282 M of 1987 in the court of learned Chief Judicial Magistrate, Kapurthala, on May 5, 1987. After recording the preliminary evidence, learned Chief Judicial Magistrate ordered the summoning of the petitioner under section 420 of the Indian Penal Code on the same day.

Allegations levelled against the petitioner in complaint annexure P. I are that respondent No. 1 met him in the premises of M/s Oberoi Travel Agents, Kapurthala, around 12 noon on January 4, 1987 along with Harbhajan Singh P.W.2, Kuldip Kumar P.W.3 &his younger brother Narinder Kumar, that there in the petitioner demanded Rs. 25,000 per person for sending them to America, that the complainant and one other person paid to the petitioner Rs. 15,000 each and agreed to pay Rs. 10,000 each more at the time of their departure for America, that both of them under instructions from the petitioner and on his asking visited Bombay on March 29, 1987 and again on April 26, 1987, that in the course of their subsequent visit on April 26, 1987 they learnt that the petitioner was not working as travel agent and had, therefore, misappropriated the amount of Rs. 15,000 each paid by the complainant and one more person to the petitioner on January 4, 1987. Hence the complaint for cheating annexure P. 1.

Reasons assigned by the petitioner for quashing the complaint annexure P. I as set out in para 10 of the complaint are :

(i) That the essential ingredients of the offence of cheating are not set out therein :

(ii) that there was no representation ever made by the petitioner to the complainant that he was a travel agent:

(iii) that at the most a case for breach of promise could be alleged and, proved against the petitioner in a civil court of competent Jurisdiction :

(iv) that dishonest intention cannot be attributed to the petitioner for his failure to stand by his promise :

(v) that the complaint has been filed with an ulterior motive to get the wholly unreasonable and totally illegal demands of the complainant satisfied., and

(vi) that the interest of justice requires that a lame prosecution of the kind as envisaged in the instant complaint should be nipped in the bud to save the unnecessary and avoidable harassment to the petitioner who will be forced to go through the formality of a fullfledged trial to prove his innocence therein.

The only question which calls for determination in this case is whether on the basis of allegations levelled against the petitioner in complaint annexure P. I it can be said that he is guilty of cheating as defined in section 415 and made punishable under section 417 of the Indian Penal Code. Relevant section 415 of the Indian Penal Code reads :

"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 carnage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation : A dishonest concealment of facts is a deception within the meaning of this section."

Each part of the section is independent of the other. The common feature in both parts is that there must be decitpractised by the accused upon the victim. Under the first part it is sufficient if there is dishonesty or fraud in obtaining delivery of property. Under the second part, there must be an intentional inducement of the victim to do or omit to do some act which he would not otherwise do or omit and such act or omission of the victim must cause or be likely to cause damage or harm to that person in body, mind, reputation or property.

The ingredients required to constitute the offence of "cheating" under section 415 are :

(i) There should be fraudulent or dishonest inducement of a person by deceiving him.

(ii)(a) The person so deceived should be induced to deliver any property to any person 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 so deceived, and

(iii) In cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

In terms of sections 32 and 33 of the Indian Penal Code the word act has to be taken to include illegal omission as well. The relevant sections read :

In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done, extend also to illegal omissions.

The word Fact"denotes as well a series of acts as a single act: the word "commission" denotes as well a series of omissions as a single omission."

Applying the acid tests aforesaid to the facts and circumstances obtaining in the complaint annexure P. 1, the irresistible conclusion is that prima facie case of cheating is made out against the petitioner on the basis through his alleged collection of Rs. 15,000/ each from two persons desirous of going abroad while sitting in the office of M/s. Oberoi Travel Agents, Kapurthala, and subsequent. detection by the victims in the course of their repeated visits to Bombay that the petitioner was neither a travel agent nor had the business of sending people abroad. Both these circumstances taken together prime facie clothe the petitioner with dishonest intention from the very beginning and inculpate him per se for the offence of cheating. Learned trial court was thus wholly justified, in making the assailed order of May 5, 1987 summoning the petitioner before it. No case for quashing the complaint annexure P. I is thus made out by the petitioner in this Criminal Misc. In Mobarik Ali Ahmed v. The State of Bombay, A.I.R. 1957 Supreme Court 857, their Lordships of the Supreme Court observed :

"The question whether the evidence discloses only a breach of civil liability or a offence under S. 420, Penal Code, depends upon whether the complainant in parting with his money acted on the representations of the accused and in belief of the truth there of and whether these representations, when made were in fact false to the knowledge of the accused and whether he had a dishonest intention from the outset. If the courts below find these facts specifically against the accused in categorical terms, the above questions of fact are not open to challenge."

It has been urged by the learned counsel for the petitioner with reference to the observations made in The State of Kerala v. A. Pareed Pillai and another, A.I.R. 1973 Supreme Court 326 that to hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise, such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. In the present case dishonest intention can be attributed to the petitioner (on given facts disclosed in complaint annexure P.1) from the very beginning of his making the promise of sending of respondent No. 1 to America after accepting Rs. 15,000/ from him while sitting in the office premises of M/s Oberoi Travel Agents at Kapurthala. The argument as also the authority cited in support of it do not enure for the benefit of the petitioner.

Similarly Shaikh Alimuddin Ahmed v. The State of West Bengal, A.I.R. 1971 Supreme Court 1371 was also an authority on distinguishable facts wherein an order of commitment based on no evidence was quashed by the Supreme Court because it had the effect of harassing the appellant. In Hari Parshad Chamaria v. Bishan Kumar Surekha and others, A.I.R. 1974 Supreme Court 301, it was held :

"Appellant intending to start business giving in full faith a large amount to respondents for the same. Respondents starting business in their own name and refusing to render accounts or return money. Even assuming prima facie all the allegations in the complaint to be true they merely amount to a breach of contract and could not give rise to criminal prosecution."

It was again a case on distinguishable facts and observations made therein are not attracted for application to the facts and circumstances of the case. In State of Karnataka v. L. Muniswamy and others., AIR 1977 Supreme Court 1489, the proceedings against the accused were quashed because there was absolutely no material on record on the basis of which any tribunal could personally come to the conclusion that the accused were in any manner connected with the incident leading to the prosecution.

The observations made in this authority also do not help the petitioner, in result, Criminal Misc. No. 6282M of 1987 fails and is dismissed with costs. It must, however, be observed that the petitioner would be able to urge before the learned trial court in his defence in the course of his trial all that he had submitted before this court in support of his claim for quashing the complaint Annexure P. 1.