Rakesh Kumar Jalan vs The State of U.P. and Another

Palok Basu, J.—Viewed from the angle that Section 420 IPC will come into play only if the ingredients described u/s 415 IPC are fully made out from the allegations made in the complaint, the result is imperative that the allegations in the present complaint do not come within the mischief of the said Sections. Shafiqurrahman Shah a merchant has filed a complaint on 13-2-1985 which has become subject matter of Criminal Case No. 390/1985 against applicant Rakesh Kumar Jalan. The Magistrate has by his order dated 30-9-1985 directed the applicant to be summoned u/s 420 IPC. Translated into English, the allegations are that the complainant and the accused were known from before. On 5-6-1984, the applicant went to the complainant and purchased goods worth Rs. 41,000/-and odd. A sum of Rs. 20,000/- was paid in cash whereas Rs. 21.000/-and odd was promised to be paid, if possible within 15 days therefrom. The goods were however, delivered through Challan No. 360 on the said date. The reason for transfer of the goods was the faith and confidence that the complainant had on the applicant, After 15 days a demand for the balance amount was made but no payment was forthcoming. In August 1984, two cheques dated 15-8-1984 and 28-8-1984 amounting to Rs. 8,500/- was paid out the applicant Rakesh Kumar within about 10 days from the said date advised his bank to stop the payment. On further demand the accused/ applicant Rakesh Kumar refused to make the payment.

The gravamen of the charge of cheating depends upon delivery of the property because of deception practised intentionaly. If that basic ingredient is absent, a later failure to pay for whatever reason, will not take the case within the four corners of cheating. As stated above, the allegations made in the complaint do net to make cut the offence of cheating u/s 420 IPC. Therefore, it follows that the order summoning the applicant is also not based on the correct appreciation of the allegations made in the complaint.

Sri S.P. Pandey learned Counsel for the applicant was heard in support of this application at length whereas Sri K.K. Tripathi learned Counsel for the complainant placed reliance on various paragraphs in the counter-affidavit and said that the allegations may constitute the offence charged with and, therefore, the trial should continue Sri Surendra Singh learned AGA has added to the arguments of Sri K.K. Tripathi. However, for the reasons stated above, this application must succeed.

This application is consequently allowed. The complaint and further proceedings in Case No. 390/1985 Shafiqurrahman v. Rakesh Kumar Jalan are hereby quashed.