Allahabad High Court
Mohd. Bazmi Siddiqui vs State Of U.P. & Another on 21 January, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 11 Case :- U/S 482/378/407 No. - 2803 of 2011 Applicant :- Mohd. Bazmi Siddiqui Opposite Party :- State Of U.P. & Another Counsel for Applicant :- S.H. Ibrahim,S.A. Abbas Zaidi Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Learned counsel for applicant is present. As per report of Chief Judicial Magistrate concerned, opposite party 2 has been served but he has chosen not to appear hence I proceed to decide the matter after hearing counsel for applicant and A.G.A. for State.
2. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash charge sheet dated 18.11.2010 as well as summoning order dated 26.3.2011, in Case Crime No.887 of 2007, Police Station Cantt., District Faizabad, whereby applicant has been summoned to face trial under Sections 419, 420, 506 IPC.
3. It is contended that applicant was not named in the FIR and even otherwise, allegations made by Informant-opposite party 2 are taken to be true, still no offence under Sections 419, 420 IPC is made out.
4. Complaint made in FIR reads as under :
^^lsok esa] ftykf/kdkjh egksn; QStkckn] egksn; lfou; fuosnu bl izdkj gS fd izkFkhZ Mk0 jes'k pUnz /kou iq= Lo0 Mk0 gfjd`".k /kou 19@3@133 ehjkiqj] u;k?kkV Fkkuk dksrokyh v;ks/;k ftyk QStkckn dk fuoklh gSA izkFkhZ lsokfuo`Rr jktif=r ofj"B fpfdRlk vf/kdkjh gSA Jh ft;kmjZgeku [kka mQZ uksekuh iq= eks0 ;koj [kku ,oa jgekuh iq= Jh ;koj [kka fuoklh da/kkjh cktkj Fkkuk dS.V ftyk QStkckn rFkk jkf'kn [kka iq= Jh vCnqy gbZ fuoklh fu;kaok 'kgj QStkckn us feydj jk;y Mk;XuksfLVd lsUVj dh LFkkiuk fd;kA bl lsUVj ij Mk;XuksfLVd dk;Z djus ds fy;s izkFkhZ dks 15000-00 izfrekg osru ij uksekuh }kjk fu;qDr fd;k x;kA izkFkhZ fnukad 27-12-2002 ls bl lsUVj ij dk;Z djus yxkA bl lsUVj ij vYV~klkm.M djus ds fy;s izkFkhZ dh ;ksX;rk ds vk/kkj ij eq[; fpfdRlk vf/kdkjh us vuqefr ns fn;kA uksekuh us vYVªklkm.M e'khu [kjhnus ds fy, izkFkhZ ls 3 yk[k 15 gtkj :i;k dtZ fy;k vkSj izkfIr dh jlhn ns fn;kA jkf'kn o uksekuh us izkFkhZ dks fo'okl esa ysdj ch-lh- pykus ds O;olk; ds fy, 6 yk[k :i;k ys fy;kA bl :i;s dks C;kt lfgr okil djus dks dgkA fnukad 16-03-2002 dks uksekuh vYV~klkm.M e'khu ys vk;s vkSj eS ml ij vYV~klkm.M djus yxkA fnukad 31-12-2003 dks fcuk eq>ls iwNs Ny diV ls e'khu csap fn;kA bldh dwVjpuk dj /kks[kk nsus dh izo`fRr dks ns[krs gq;s eSaus fnukad 31-12-2003 ls mijksDr lsUVj ij dk;Z djuk can dj fn;k rFkk fn;s x;s /ku dks okil djus dks dgk rks bu yksxksa us dgk fd eSa cSad ls dtZ ysdj :i;k okil dj nwaxkA bUgksaus bafM;u vksojlht cSad ls dtZ fy;k ijUrq esjk /ku okil ugha fd;kA dqy feykdj izkFkhZ dks yxHkx 12 yk[k :i;s feyuk pkfg;s ijUrq okil ekaxus ij tku ls ejok nsus dh /kedh nh tk jgh gSA eSa bl lsUVj ij dk;Z ugha dj jgk gwWA fQj Hkh uksekuh fcuk vf/kdkj ds vYV~klkm.M dk dk;Z dj jgs gSA vkSj esjk QthZ gLrk{kj cukdj fjiksVZ ns jgs gSaA vr% izkFkZuk gS fd mijksDr rhuksa yksxksa ds fo:) eqdnek dk;e djds n.MkRed dk;Zokgh djus dh d`ik dh tk;sA** "To, The District Magistrate, Faizabad. Sir, It is submitted that applicant Dr Ramesh Chandra Dhawan s/o Late Dr Hari Krishna Dhawan is a resident of 19/3/133 Meerapur, Naya Ghat, PS Kotwali, Ayodhya. Applicant is a retired Senior Medical Officer (Gazetted). Sri Zia-ur-Rehman Khan alias Nomani s/o Mohd Tavar Khan, Rehmani s/o Sri Yavar Khan r/o Kandhari Bazaar, PS Cantt, Distt Faizabad and Rashid Khan s/o Sri Abdul Hai r/o Niyawan, Faizabad together established the Royal Diagnostic Center. Applicant was appointed by Nomani at this centre for diagnostic work against the salary of Rs 15,000/- per month. The applicant started working at this centre from 27.12.2002. In view of applicant's qualification, the Chief Medical Officer accorded permission to him for ultrasound work. Nomani took a loan of three lakh fifteen thousand rupees from the applicant to purchase an ultrasound machine and for this he gave him a receipt. Rashid and Nomani taking the applicant into confidence took six lakh rupees from him for running a 'bisi' business. Money with interest was demanded back. On 16.3.2002 Nomani bought an ultrasound machine and I started conducting ultrasound with the same. On 31.12.2003 the machine was sold in a fraudulent manner without taking my consent. In view of his tendency to play fraud, I stopped working at the aforesaid centre on 31.12.2003 and asked him to return the money. These people assured to return the money to me by taking a loan from the bank. They took loan from the Indian Overseas Bank but did not return the money. Total twelve lakh rupees is required to be paid to the applicant but on the money being demanded back, they are holding out a threat to orchestrate my murder. I am not working at this centre, though Nomani is performing ultrasound work without any authority and issuing reports by putting my fake signature. Hence, a case may please be registered against the aforesaid three persons and punishment be awarded."
(English Translation by Court)
5. From a bare perusal of allegations made in FIR it is evident that Informant-opposite party 2 paid money voluntarily and there is no allegation that there was any dishonest inducement on the part of accused person.
6. Section 420 is "cheating" which is defined in Section 415 and both these provisions read as under:
"415. 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 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 damage 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."
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
7. In order to attract allegations of "cheating", following things must exist:
(i) The person deceived, delivered to someone or consented that certain person shall retain property.
(ii) Person deceived was induced by accused to do as above.
(iii) Such person acted upon such inducement and consequently was deceived by the accused.
(iv) Accused acted fraudulently or dishonestly.
(v) Accused did it intentionally.
(vi) such act or omission caused or likely to cause damage or harm to that person in body, mind, property or reputation.
(Emphasis added)
8. Then in order to attract Section 420 I.P.C., essential ingredients are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
9. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
10. In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
11. In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
12. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, 2000(4) SCC 168 Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
13. In S.W. Palanitkar and others Vs. State of Bihar and another, 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
14. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
"Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person 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, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest." (Emphasis added)
15. In Devender Kumar Singla Vs. Baldev Krishan Singh 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
16. In Indian Oil Corporation Vs. NEPC India Ltd., 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
17. Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
18. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
19. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
20. Looking to allegation made in complaint and in the light of exposition of law in respect of Section 420 IPC, as discussed above, I find that in the present case there is no allegation of dishonest inducement on the part of applicant. The basic ingredients of Section 420 read with 415 IPC i.e. dishonest inducement to person so deceived to deliver any property is clearly absent.
21. Once necessary ingredient is absent, offence under the said provision cannot be made out. In R.K. Vijayasarathy and others vs. Sudha Seetharam and others 2019(3) SCALE 563, in similar circumstances, Supreme Court, in para 18 said :
"The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17 February 2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out."
(emphasis added)
22. There is nothing on the face of record to indicate that Accused-applicant dishonestly induced Complainant to deliver any property to him. In the circumstances, proceedings against Accused-applicant under Section 419 and 420 IPC is illegal and gross abuse of process of law.
23. So far as offence under Section 506 IPC is concerned, allegations contained in the application satisfy ingredients of aforesaid provision and in fact nothing has been argued before this Court even to suggest that Section 506 IPC is not attracted in this case.
24. In view of discussions made hereinabove and considering the allegations contained in the FIR in the case in hand in the light of above authorities, proceedings to the extent it relates to Sections 419 and 420 IPC are liable to be quashed.
25. The application is partly allowed. Impugned charge sheet dated 18.11.2010 filed in Case Crime No.887 of 2007, Police Station Cantt., District Faizabad, under Sections 419, 420 IPC is hereby quashed.
Order Date :- 21.1.2020 KA