Bajrang Lal Choudhary and Another vs State of Jharkhand and Another

R.R. Prasad, J.—Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite party No. 2. This application has been filed for quashing of the order dated 4.5.2011 passed in Complaint Case bearing No. 1441 of 2011 whereby and whereunder cognizance of the offence was taken under Sections 420, 468, 471, 427 of the Indian Penal Code against the petitioners.

It was submitted on behalf of the petitioner that a commercial complex to which the petitioners claimed to be the lawful owner was leased out to the complainant for a fixed period. That period got expired in the year 2008. Thereafter a case for eviction was lodged against the complainant. Meanwhile, Jamshedpur Notified Area Committee (JNAC) having found the construction of commercial complex to be illegal, demolished it. Thereupon, a case was lodged by the complainant alleging therein that the petitioners had misrepresented that they were legal owners of that complex and induced him to be a tenant whereas it was unauthorized construction which was demolished and the complainant has been cheated. On such complaint, when the cognizance was taken, vide order dated 4.5.2011, it was challenged before this Court.

Mr. Jitendra S. Singh, learned counsel appearing for the petitioners submits that accepting the entire allegation to be true, no offence of cheating or forgery is made out and therefore, order taking cognizance is fit to be quashed.

As against this, Mr. Ananda Sen, learned counsel appearing for the opposite party No. 2 submits that the petitioners were never the legal owners of the complex which was let out to the complainant on misrepresentating the fact that he is lawful owner of that complex though it was unauthorized construction which got demolished by the Jamshedpur Notified Area Committee, since on such misrepresentation, the complainant got himself inducted as tenant of the premises which got demolished, the petitioner can certainly be said to have cheated the complainant.

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 S. 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.

Here in the instant case, allegation made in the complaint never attract any of ingredients as stated above. For inducting a tenant one needs not to be rightful owner of the house. Under the law, even a person other than the owner can be landlord. In such situation, petitioner did not commit wrong in inducting the complainant as tenant over it even if he was not the owner. Moreover, complainant in any view of the matter, cannot be said to have been deceived as it is not the case of delivery of any property on misrepresentation and therefore, question of committing offence u/s 420 of the Indian Penal Code does not arise.

So far offence of forgery is concerned, that also does not get attracted on the allegation that a lease deed was executed by the complainant when it conveyed that the petitioner is rightful owner of the premises though he was never owner of that property.

In this respect, I may refer to a decision rendered in a case of Md. Ibrahim and Others Vs. State of Bihar and Another, wherein their Lordships after having regard to the provision as contained in Section 470 of the Indian Penal Code as well as other provisions relating to forgery did observe as follows.

The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof)- This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.

The Court has further observed that analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories as follows:--

The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a documents in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not be reason of:--

(a) unsoundness of mind; (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.

In short, a person is said to have made a ''false statement'', if (i) he made or executed a document claiming to be someone else or authorized by some one else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.

In the facts of the present case, no offence of forgery is made out as allegation never falls within any of the aforesaid three categories of cases as mentioned above.

Accordingly, the entire criminal proceeding of Complaint Case No. 1441 of 2011 including the order dated 4.5.2011, taking cognizance, is hereby quashed so far the petitioners are concerned. In the result, this application stands allowed.