Smt.Sangita Shrivastava vs Santram And Another

This petition under Section 482 of Code of Criminal Procedure 1973 has been filed by the petitioner against the order dt.23.09.2017 passed by the

Second Additional Sessions Judge, Bhind in Cr.R.No.105/2015, whereby the order dt.11.2.2015 passed by the learned C.J.M. Bhind in Criminal Case

No.120/2015 issuing summons to the petitioner alongwith her husband after taking cognizance against her under the provisions of Section 420/34 of

IPC has been upheld.

It is the contention of the petitioner that the complainant Santram has filed a private complaint against Dheeraj Shrivastava, petitioner Sangita

Shrivastava and one Rakesh Singh under the provisions of Section 420, 467, 468, 471, 294 and 506-B of IPC, in which it is mentioned that the present

petitioner is working as Staff Nurse in District Hospital, Bhind alongwith the complainant. The complainant is working as Compounder. According to

the allegations, the present petitioner had introduced Dheeraj Shrivastava and Rakesh Singh with the complainant for the purpose of purchase of a

house at Gwalior. The complainant was shown the house at Aamkho Gwalior by Dheeraj Shrivastava, which was liked by the complainant and for

which the price was settled as Rs.17,15,000/-. Thereafter he had given a cheque of Rs.50,000/- as advance and thereafter he was informed that he

being a government servant will be entitled to a loan of Rs.11,00,000/- from the bank and he had made certain papers available to the accused persons

and at the instance of the present petitioner and her husband, he had given a cheque of Rs.3,50,000/- on 21.1.2012. Thereafter he had again paid

certain amount on 27.3.2012. Thus, total Rs.7,00,000/- was paid. Despite receiving such cheques and submitting papers for bank loan when

complainant asked for execution of sale deed, then the present petitioner had assured him that since she is a colleague of the complainant, his money is

safe and by way of surety Dheeraj Shrivastava had given two cheques of total Rs.7,00,000/- but when such cheques were deposited, then they were

dishonoured. In view of such facts, he had made a report to the Police Station but since relative of Dheeraj Shrivastava is working as Steno in the

office of S.P. Bhind, therefore, no action was taken. It is also mentioned in the complaint that thereafter he had undertaken proceedings under Section

156 (3) of Cr.P.C. and thereafter direction was issued for registration of case against the accused persons including the present petitioner. But under

the pressure, police is not proceeding with the case and is trying to file ER as a result, complainant had filed a private complaint in which cognizance

has been taken.

Learned counsel for the petitioner on the other hand submits that the present petitioner has falsely been impleaded in the case. He has taken this court

through statements given by the complainant Santram Sharma on 31.7.2012 before the police authorities to point out that the role of the petitioner was

limited to introduce the complainant to her husband, who is a property dealer. He has pointed out specific contention to the effect that complainant in

his statement admitted that on 14.12.2011 he had gone to Gwalior alongwith his child, wife and Dheeraj Shrivastava, where he was shown three

Duplex Houses constructed behind Aamkho Bus Stand and had informed him that one of the house was of his share (share of Dheerendra

Shrivastava) and he will sale it. He had given cost of such house at Rs.17.5 lakhs and when complainant informed him that he can not give this much

amount, then he had assured that he will get finance to the tune of Rs.11 lakhs. Then the complainant had paid a sum of Rs.50,000/- vide cheque

No.4312 from Account No.143501500087 jointly held by the complainant alongwith his wife at ICICI Bank. Thereafter the complainant had furnished

all the documents to Dheeraj Shrivastava for obtaining loan and after 8-10 days he telephoned the complainant that the bank has financed him to the

tune of Rs.10,65,000/- and demanded remaining amount when complainant had paid him cheque No.4313 dt.21.1.2012 and cheque No.865 on

27.3.2012. Thereafter on 3.4.2012 when he had contacted Dheeraj Shrivastava on his mobile number in regard to registration of sale deed, he called

him to Gwalior next day. When he reached there on 4.4.2012, then he found that house of Dheeraj Shrivastava at Deen Dayal Nagar Gwalior bearing

No.B-489 was locked, then he contacted Dheeraj Shrivastava, who informed him that he was at Morena and asked him to go back. Thereafter he got

suspicious and visited Aamkho, Gwalior. There on inquiry, it was revealed that the houses which were shown of Dheeraj Shrivastava were not of his

own but their owner was one Vinod Tomar and he was only selling those houses. Thereafter when Dheeraj Shrivastava stopped taking calls he

reported the matter to his wife Smt. Sangita Shrivastava on whose instructions Dheeraj Shrivastava had given Cheque No.005710 for a sum of

Rs.3,00,000/- drawn at ICICI Bank and another Cheque No.005711 for a sum of Rs.4,00,000/- dt.7.5.2012 and when such cheques were presented,

they were dishonoured. In view of such statement given to police learned counsel submits that none of the ingredients of Section 420 or Section 34 of

IPC are made out against the present petitioner and therefore the cognizance, which has been taken by the trial court, as has been affirmed by the

revisional court, deserves to be set aside.

Learned counsel for the respondent/complainant Shri Rajiv Sharma on the other hand has placed on record a report furnished by the City

Superintendent of Police, Bhind dt.16.8.2012 addressed to the Superintendent of Police Bhind, in which the finding has been recorded that Dheeraj

Shrivastava and his wife Smt. Sangita Shrivastava are found to be involved in crime under the provisions of Section 420, 34 of IPC and Section 138 of

Negotiable Instrument Act. Placing reliance on documents Shri Rajiv Sharma has placed reliance on the judgment of Hon’ble Supreme Court in

the case of Sonu Gupta Vs. Deepak Gupta and others as reported in (2015) 2 SCC (Cri) 265, wherein it has been held that at the stage of issuance of

process â€" summoning of accused the Magistrate is required to apply his judicial mind only with a view to take cognizance of offence. At this stage,

Magistrate is not required to consider the defence version or materials or documents nor is he required to evaluate the merits of the materials or

evidence of the complainant.

Similarly, reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of Smt. Mona Panwar Vs. Hon’ble High Court

of Judicature at Allahabad through its Registrar and others as reported in 2011 CRI.L.J. 1619, wherein Hon’ble Supreme Court held that it is

within the power of the Magistrate to direct police investigation or to register complaint and call complainant for examination. This order can not be

interfered with by superior court only because other view is possible.

Reliance has also been placed on the judgment of the Hon’ble Supreme Court in the case of Ram Swarup Vs. Mohd. Javed Razack and another

as reported in 2005 SCC (Cri) 1549, wherein Hon’ble Supreme Court has held that Magistrate can take cognizance of the offence without

referring the matter to the police under Section 156 (3). He has also drawn reliance on the judgment of Hon’ble Supreme Court in the case of

Suresh Chand Jain Vs. State of M.P. and another as reported in 2001 SCC (Cri.) 377, wherein the ratio is that when a Magistrate orders investigation

under Chapter XII he does so before he takes cognizance of the offence. A Magistrate need not order any such investigation if he proposes to take

cognizance of the offence. Once he take cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code.

He has also placed reliance on the judgment of Gangadhar Janardan Mhatre Vs. State of Maharashtra and others as reported in 2005 SCC (Cri) 404

to submit that on information to the police regarding commission of cognizable offence if no action is taken by the police and in such a case

complainant is given power under Section 190 read with Section 200 of Cr.P.C. to lay the complaint before the Magistrate concerned, then the

Magistrate is required to inquire into the complaint as provided in Chapter XV of Cr.P.C. Writ Petition in such a case held as maintainable. Placing

reliance on such judgments, he prays for dismissing the petition.

In the present case what is to be examined is whether the present petitioner can be said to a party to the so called act of cheating by her husband. The

primary requirement to make out an offence of cheating under Section 415 punishable under Section 420 of IPC is that dishonest or fraudulent

intention of the accused at the time of alleged inducement is made. Mere breach of contract does not give rise to criminal prosecution under Section

420 unless fraudulent or dishonest intention is shown right at the beginning of transaction time, when the offence was said to have been committed. In

the present case it is evident from the statement given by the complainant to the police that the present petitioner had not visited Gwalior to show him

or his family property proposed to be purchased or proposed to be sold by her husband. Her role was only limited to introducing her husband who was

a property dealer. There is no agreement to sale on record to depict that there was any transaction in relation to the property or it was a transaction of

loan simplicitor. Amounts were paid by the complainant to the husband of the petitioner and not to the petitioner. Cheque was issued by the husband of

the petitioner in favour of the complainant at the instance of the complainant, thereafter, the cheque was bounced.

Now what is to be examined is whether dishonor of the cheques by itself constitute an offence of cheating or not. Even the report relied on by the

respondent/complainant as was submitted by the CSP Bhind reveals that he has mentioned that the case is made out under Section 420, 34 read with

Section 138 of N.I.Act. Admittedly, cheque was signed by Dheeraj Shrivastava and not by the petitioner. In fact in the case of Sitakant Govind Bhobe

Vs. J.X.Miranda as reported in 1977 CRI.L.J.531 (Goa), it has been held that dishonour of cheque by itself does not constitute the offence of

cheating. In the present case, it is apparent that the petitioner was not a party to the transaction. No amount was settled at her instance or before her.

No amount was paid at her instance or before her. On the contrary, she facilitated return of the money given by the complainant to the husband of the

petitioner. Thus, in a case of cheating the charge must set out in the manner in which the offence was committed and in the present case manner of

inducement as far as the petitioner is concerned, is not available. Petitioner as a colleague had only facilitated meeting of property dealer with the

complainant but incidentally property dealer happens to be her husband does not per se mean that she had any intention of cheating or dishonestly

inducing the respondent/ complainant to deliver any property. In fact on the other hand she has acted as a facilitator as per the own showing of the

complainant in asking her husband to return the amount through cheques.

Therefore, in the light of the facts, as far as the judgment in the case of Gangadhar Janardan Mhatre (supra) is concerned, it has no application. As

far as case of Suresh Chand Jain (supra) is concerned, it deals with the procedure that the Magistrate can take cognizance of an offence or can direct

the police to register an FIR and investigate the matter concerned. Similarly in the case of Ram Swarup (supra) Magistrate was required to

demonstrate his satisfaction that prima facie alleged offence was made out against the petitioner. Similarly law laid down in the case of Smt.Mona

Panwar (supra) is not relevant for the present controversy because present case deals with only one aspect i.e. whether the Magistrate had applied

his judicial mind or not while taking cognizance against the present petitioner. In this regard, there should have been availability of basic ingredients

that the present petitioner was one who had deceived the complainant and due to such deception the complainant was forced to deliver any property

or any valuable security in favour of co-accused Dheeraj Shrivastava. In the present case since none of the essential ingredients namely petitioner

having deceived the complainant or induced the complainant to deliver any property are available, this court is of the opinion that the trial court as well

as revisional court failed in appreciating the material on record and the improvement made by the complainant from the statement originally given to

police in the case diary thus acted arbitrarily in taking cognizance against the present petitioner.

In fact in the light of the law laid down by the Hon’ble Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others as

reported in 1992 Supp (1) SCC 335, the petitioner's case falls within the Exception 1 and 7, inasmuch as even if the allegations made in the complaint

are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the present petitioner.

There is substance in the allegations of petitioner’s counsel that it is a case of malafide wherein the complainant is unnecessarily trying to rope in

the petitioner who is a government servant and who acted bonafidely and genuinely and only arranged meeting of two persons. She was not

instrumental of any transaction and therefore it appears that a criminal proceedings against the petitioner are manifestly attended with mala fide and/or

maliciously instituted with an ulterior motive for wreaking the vengeance on the accused and with a view to spit him due to private and personal

grudge. Thus, the order of taking cognizance against the present petitioner for want of necessary ingredients of Section 420 of IPC deserves to be

quashed, inasmuch as even in the complaint which has been filed by the complainant he has not taken the name of the present petitioner that she was

a party to showing of the houses or of accepting any advance, which was given by the complainant on 4.12.2012. As per the own showing of the

complainant present petitioner was not present at Amkho, Gwalior and no amount was handed over in front of her or at her instance at Aamkho,

Gwalior on or subsequent thereto.

Therefore, the impugned orders as far as the petitioner Smt. Sangeeta Shrivastava is concerned deserve to be and are hereby quashed.