Managobinda Sahu vs Samser Ali Khan and Others

D.P. Mohapatra, J.—In this revision petition the complainant seeks to challenge the order of the S.D.J.M., Jajpur in I.C.C. No. 321 of 1981 dismissing his complaint and discharging the opposite parties u/s 245(1), Code of Criminal Procedure.

The gist of the facts relevant for the present proceeding are that the Petitioner filed a complaint against the two opposite parties, opposite party No. 1 being the father of opposite party No. 2, alleging inter alia that he had authorised one Bidyadhar Barik on 9-5-1979 to receive 200 bags of cement allotted to him for his Cement Tile Factory (Sepamukhi Tile Factory, Jajpur) from the cement factory at Rajgangpur on 10-5-1979. When the latter appeared before the Company authorities and wanted to deposit the money for taking delivery of the cement bags he was informed that the stock had already been lifted by some person living out the name of the complainant. The said Bidyadhar Barik returned to Jajpur and intimated the Petitioner about what transpired at Rajangpur. Then the Petitioner gave a report to the local police relating to the matter. Subsequently, he came to learn that the opposite party had lifted the stock of cement allotted to him falsely giving out his name.

In the enquiry u/s 202, Code of Criminal Procedure the said Bidyadhar Barik and the Petitioner were examined. They gave statements supporting the allegations noted above. On consideration of their statements, the learned Magistrate came to hold that the evidence of P.Ws. 1 and 2 does not make out a case of cheating u/s 420, I.P.C. which if unrebutted would warrant a conviction. As such, seeing no sufficient ground for proceeding against the opposite parties, he dismissed the complaint.

The learned Counsel for the Petitioner has submitted that on the material produced before him the learned Magistrate should have held, that a prima facie case u/s 420, Indian Penal Code was made out and he should have issued processes against the opposite parties. The learned Counsel has placed the evidence of the two witnesses examined in the enquiry u/s 202, Code of Criminal Procedure. All that they have stated is that an reaching. Rajgangpur Bidyadhar Barik (P.W. 1) was told by the authorities of the company that stack meant far the complainant Petitioner had been lifted from the factory by somebody. After getting this information from Bidyadhar Bank, the Petitioner could came to know that the apposite parties were responsible far lifting the stock of cement from the factory.

The ingredients required to constitute the offence of cheating u/s 415, Indian Penal Code are:

(i) There should be fraudulents or dishonest 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 or omit to do anything which he would not do or omit if he were not so deceived;

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

It is of the essence of the offence of cheating that the delivery of property should be by the person who himself was deceived by the accused. So no offence of cheating can be said to have been committed if one person is induced by deception to do or omit to do something and the act or omission causes or is likely to cause damages or harm to another person. In order to came within the scape of cheating by personation as defined u/s 416, Indian Penal Code in addition to the above ingredients there trust be evidence to show that the person deceived was induced by such deception to deliver property or otherwise to act to his own detriment.

In the present case, there is no material to prima facie satisfy these essential ingredients of the offence of cheating. There is no offence even to show that the accused persons lifted the cement quota meant for the complainant. In these circumstances, the Court below was justified in refusing to issue processes to the accused persons.

In the result, the revision petition is devoid of merit and the same is dismissed.