Himachal Pradesh High Court
Anshuman Krishnan vs State Of H.P And Anr on 1 August, 2024
Neutral Citation No. ( 2024:HHC:6153 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 513 of 2023
.
Reserved on: 22.07.2024
Date of Decision: 01.08.2024
Anshuman Krishnan
....Petitioner
Versus
State of H.P and anr.
....Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes
For the Petitioner : Mr P.S. Goverdhan, Sr. Advocate,
with Mr Rakesh Thakur, Advocate.
For Respondent No.1 : Mr. Lokender Kutlehria, Additional
Advocate General.
For Respondent No.2 : Mr. Abhinav Ghabroo, Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for quashing
of FIR No. 10/2022, dated 13.01.2022 registered at Police Station
Parwanoo, Tehsil Kasauli, District Solan, H.P for the commission of
offences punishable under Sections 403, 405, 406 and 420 of IPC.
2. Briefly stated, the facts giving rise to the present petition
are that respondent No.2/informant made a complaint to the police
stating that he is the proprietor of M/s Anil Kalta Brother's and
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Company and carrying out the business at Shop No. 39, Terminal Fruit
Markets Parwanoo, District Solan, H.P. The petitioner/accused
.
approached the informant in July 2019 with the request to purchase
apple boxes. The petitioner told the informant that he was running a
business of Aarhti (broker) at Shop No.14, Chait Ram Market, Indore.
He would purchase apples from the informant and make the payment
immediately after the arrival of the consignment. The informant sent
the first consignment on 20.07.2019. The informant maintained the
account in respect of each transaction w.e.f. 20.07.2019 to 31.03.2020.
The informant sent the consignment worth ₹2,79,30,560/-, however,
he received ₹2,18,50,000/- from the accused. His closing balance was
₹60,80,557/-. The petitioner failed to pay the amount and retained it
dishonestly. The informant repeatedly requested the petitioner to
make the balance payment but the petitioner failed to do so. The
informant suffered a huge loss; hence, a prayer was made to register
the FIR for the commission of offences punishable under Sections
403, 405, 406 and 420 of IPC.
3. The police registered the FIR No. 10 of 2022, dated
13.01.2022, for the commission of offences punishable under Sections
403, 405, 406 and 420 of IPC.
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4. Being aggrieved from the registration of the FIR, the
petitioner has filed the present petition asserting that the informant
.
filed a false FIR against the petitioner. There was no outstanding
amount payable by the petitioner to the informant at any point of
time. He threatened the petitioner and the petitioner made a
complaint against the informant to the Director General of Police,
Shimla and SHO Parwanoo. The petitioner also sent a legal notice to
the informant. The FIR is an afterthought. The police served a notice
upon the petitioner under Section 91 of Cr.P.C., which notice is wrong.
The FIR does not disclose the commission of any cognizable offence.
As per the FIR, the petitioner is not making the payment of the
balance amount, which discloses a civil dispute between the parties
regarding the payment of money. There is nothing in the FIR to show
that the petitioner had a malicious intention to cheat the informant
from the beginning. A civil dispute is being converted into a criminal
dispute. The petitioner is innocent and he was falsely implicated.
Hence, it was prayed that the present petition be allowed and the FIR
be ordered to be quashed.
5. The State filed a reply reproducing the contents of the FIR.
It was asserted that an amount of ₹60,80,557/- is due to the
informant. The informant demanded the money but the petitioner
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failed to pay the same. The police asked the petitioner to join the
investigation repeatedly. Notice was also served under Section 91 of
.
Cr.P.C. upon the petitioner; however, he failed to comply with the
notice and filed the present petition. The allegations in the FIR show
the intention to cheat the informant and the FIR was rightly
registered; therefore, it was prayed that the present petition be
dismissed.
6. No reply was filed on behalf of the informant.
7. I have heard Mr P.S. Goverdhan, learned Senior Counsel
assisted by Mr Rakesh Thakur, learned counsel for the petitioner, Mr
Lokender Kutlehria, learned Additional Advocate General for
respondent No.1 and Mr. Abhinav Ghabroo, learned counsel for
respondent No.2.
8. Mr. P.S. Goverdhan, learned Senior Counsel for the
petitioner submitted that the contents of the FIR do not show the
commission of any cognizable offence. As per the FIR, the informant
had supplied the apple to the petitioner and the petitioner had failed
to pay the amount to the informant. This is a civil dispute, which is
being converted into a criminal dispute and is not permissible. The
allegations in the FIR do not constitute the commission of any
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offence; therefore, he prayed that the present petition be allowed and
the FIR be quashed.
.
9. Mr. Lokender Kutlehria, learned Additional Advocate
General for respondent No.1/State submitted that the investigation is
at the initial stage. The police had sent the notices under Section 91 of
Cr.P.C. to the petitioner but he failed to abide by it and filed a false
petition; therefore, he prayed that the present petition be dismissed.
10. Mr. Abhinav Ghabroo, learned counsel for respondent
No.2/informant adopted the submissions of Mr. Lokender Kutlehria,
learned Additional Advocate General and submitted that the contents
of the FIR show the commission of a cognizable offence. The
investigation is at the initial stage and the power under Section 482 of
Cr.P.C. should not be exercised to prevent the police from
investigating the matter; hence he prayed that the present petition be
dismissed.
11. I have given considerable thought to the submissions at
the bar and have gone through the records carefully.
12. The law regarding the exercise of jurisdiction under
Section 482 of Cr.P.C. was considered by the Hon'ble Supreme Court in
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A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was observed:
-
.
9. The law with regard to the exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminal
proceedings has been succinctly summarized by this Court in the
case of Indian Oil Corporation v. NEPC India Limited (2006) 6 SCC
736: 2006 INSC 4521 after considering the earlier precedents. It
will be apposite to refer to the following observations of this
Court in the said case, which read thus:
"12. The principles relating to the exercise of jurisdiction
under Section 482 of the Code of Criminal Procedure to
quash complaints and criminal proceedings have been
stated and reiterated by this Court in several decisions. To
mention a few--Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC
692: 1988 SCC (Cri) 234], State of Haryana v. Bhajan
Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol
Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC
(Cri) 1059], Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State
of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC
(Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC
259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P)
Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269: 2000 SCC (Cri)
615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000)
4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay
Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005)
1 SCC 122 : 2005 SCC (Cri) 283]. The principles, relevant to
our purpose are:
(i) A complaint can be quashed where the
allegations made in the complaint, even if they are
taken at their face value and accepted in their
entirety, do not prima facie constitute any offence
or make out the case alleged against the accused.
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For this purpose, the complaint has to be examined
as a whole, but without examining the merits of the
allegations. Neither a detailed inquiry nor a
.
meticulous analysis of the material nor an
assessment of the reliability or genuineness of the
allegations in the complaint is warranted while
examining prayer for quashing a complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or to
cause harm, or where the allegations are absurd and
inherently improbable.
(iii) The power to quash shall not, however, be used
to stifle or scuttle a legitimate prosecution. The
power should be used sparingly and with abundant
caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid in
the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of the
complaint is warranted only where the complaint is
so bereft of even the basic facts which are necessary
for making out the offence.
(v.) A given set of facts may make out : (a) purely a
civil wrong; (b) purely a criminal offence; or (c) a
civil wrong as also a criminal offence. A commercial
transaction or a contractual dispute, apart from
furnishing a cause of action for seeking remedy in
civil law, may also involve a criminal offence. As the
nature and scope of a civil proceeding are different
from a criminal proceeding, the mere fact that the
complaint relates to a commercial transaction or
breach of contract, for which a civil remedy is
available or has been availed, is not by itself a
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ground to quash the criminal proceedings. The test
is whether the allegations in the complaint disclose
a criminal offence or not.
.
13. Similar is the judgment in Maneesha Yadav v. State of U.P.,
2024 SCC OnLine SC 643, wherein it was held: -
12. We may gainfully refer to the following observations of this
Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1)
SCC 335: 1990 INSC 363:
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases
by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court
or otherwise to secure the ends of justice, though it may not
be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they 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 accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
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(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the commission
.
of any offence and make out a case against the
accused.
(4) Where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
103. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should
be exercised very sparingly and with circumspection
and that too in the rarest of rare cases; that the court
will not be justified in embarking upon an enquiry as
to the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that
the extraordinary or inherent powers do not confer an
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arbitrary jurisdiction on the court to act according to
its whim or caprice."
14. The present petition has to be considered as per the
.
parameters laid down by the Hon'ble Supreme Court.
15. The FIR has been registered for the commission of offences
punishable under Sections 403, 406 and 420 of the IPC. These three
Sections require different mens rea/state of mind.
16.
Section 403 of IPC provides the punishment for criminal
misappropriation of movable property. It was laid down in Bhagiram
Dome vs. Abar Dome and Ors. (24.01.1888 - CALHC):
MANU/WB/0126/1888 that the possession in case of criminal
misappropriation is innocent and the retention becomes unlawful
subsequently. It was observed:
"Criminal misappropriation takes place when the possession
has been innocently come by, but where, by a subsequent
change of intention or from the knowledge of some new fact
with which the party was not previously acquainted, the
retaining becomes wrongful and fraudulent (see Mayne p. 335).
In this particular case, there cannot be any pretence for saying
that subsequent to the act of taking the fish anything happened
which constituted the retaining of the fish wrongful and
fraudulent. The intention was one and the same throughout,
and no new facts occurred which could possibly change the
character of the seizure and retention of the fish."
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17. This position was reiterated in State of Madhya Pradesh vs.
Pramode Mategaonkar (22.02.1964 - MPHC): MANU/MP/0090/1964
.
wherein it was observed:
"The essence of the offence of criminal misappropriation is that
the property of another person comes into the possession of the
accused in some neutral manner and is misappropriated or
converted to his own use by the accused. No entrustment is
required for this offence to be constituted. Undoubtedly, the
respondent converted the cheque to his own use when it was not
his property, even if it is not proved how he got it, he cannot
escape from punishment for criminal misappropriation."
18. Thus, the Section requires that the property is taken
honestly by a person but is retained dishonestly; hence, the initial
acquisition of the property under Section 403 of IPC is honest but
becomes dishonest by the subsequent act of the accused.
19. Section 406 of the IPC provides the punishment for
criminal breach of trust defined in Section 405 of the IPC. In this case,
the property is entrusted to the accused and the accused dishonestly
misappropriates the property or disposes it of in violation of the
direction of law or the mode, in which the trust is to be discharged. It
was laid down by the Hon'ble Supreme Court in Sudhir Shantilal Mehta
v. CBI, (2009) 8 SCC 1: (2009) 3 SCC (Cri) 646: 2009 SCC OnLine SC 1482
that criminal breach of trust requires the use or disposal of the
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property by a person being entrusted with or having dominion over
the property. It was observed:
.
"66. The criminal breach of trust would, inter alia, mean using
or disposing of the property by a person who is entrusted with
or has otherwise dominion thereover. Such an act must not only
be done dishonestly but also in violation of any direction of law
or any contract express or implied relating to carrying out the
trust."
20. Thus, in the offence of criminal breach of trust, the initial
complainant.
r to
acquisition of the property is as a trustee on behalf of the
21. Section 415 of the IPC defines the cheating as deception of
a person and delivery by a person fraudulently or dishonestly. Thus,
the initial acquisition of the property is by practising deception
making the other person deliver the property to the accused.
22. It is apparent from the perusal of these three Sections that
they require three different states of mind. Section 403 requires
honest acquisition of the property. Section 406 requires entrustment
of the property and Section 420 requires dishonest inducement to
deliver the property. A person cannot possess three different
intentions simultaneously, namely, honesty, entrustment and
dishonest inducement. Therefore, the FIR could not have been
registered for the commission of offences punishable under Sections
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403, 406 and 420 of IPC regarding one transaction because three
Sections required three different states of mind, which cannot co-
.
exist together.
23. It was laid down by Madras High Court in Vadivel vs.
Packialakshmi 1996 Crl. L.J 300 that dishonest intention is the sine qua
non to attract cheating and voluntary entrustment is necessary to
constitute the breach of trust. Both these states of mind are mutually
exclusive. It was observed:-
"8. Thus, it is seen that for identifying the concept of criminal
cheating, as provided under Section 416 of the Indian Penal
Code, the ingredients of fraudulent, dishonest intention has
become the basic sine quo non and if it is there or, identified,
then it is to be further ascertained that as a result of which the
person so represent must be made to deliver any property to
the other and that the inducement must be inherent with the
intention to keep the same or to utilise the said property for the
use and utilisation of the person, who made such an
inducement within such intention. Whereas in the concept of
the criminal breach of trust, as defined under Section 405 of
the Indian Penal Code, voluntary entrustment following
dominion over such property by one to the other person has
become necessary to be identified and that the property has
become necessarily disentitled, misappropriated or converted
in such a way as provided by the Section. If the ingredients set
out in the above sections of the law are identified, upon the
materials placed by the prosecution, then, Sections 406 and
420 of the Indian Penal Code respectively being the
punishment sections come into operation.
However, while doing such legal exercises, it has become
imperative for the Court to see that the criminal breach of trust
and cheating, though, generally involves dishonest intention,
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but, both are mutually exclusive and different in the basic
concept, in the context that criminal breach of trust is
voluntary and cheating, is purely on the basis of inducement
.
with dishonest intention. In this regard, I have to say my view
that both the concepts of law for the respective offences are
totally distinct, different and accordingly, mutually exclusive
from each other. Unless and until these are adequate materials
available and made before the Court of law, both offences can
be dealt with together."
24. A similar view was taken by the Punjab and Haryana High
Court in Jalpa Parshad Aggarwal v. State of Haryana, 1987 SCC OnLine
P&H 580 wherein it was observed:
"3. At the very outset, it may be mentioned that this Court held
in Iqbal Singh Randhawa v. Doctor Satpaul Goyal, 1977 C.L.R. (Pb.
& Har.) 134, that an offence under section 406, Penal Code,
1860, is, an antithesis of an offence under section 420, Penal
Code, 1860. In a case of criminal misappropriation, the property
is voluntarily kept in the custody of an accused whereas in a
case of cheating, the accused, by adopting deceitful means,
induces the complainant to part with the property. Thus, an
accused cannot be tried for these two offences simultaneously.
Either he has committed an offence under Section 406, Penal
Code, 1860 or under Section 420, Penal Code, 1860."
25. Gujarat High Court also took a similar view in
Rajendrakumar Chakravarti v. Co-operative Bank of Baroda, 1997 SCC
OnLine Guj 87: (1997) 2 GLH 394: 1998 Cri LJ 216: (1997) 4 GCD 520
wherein it was observed:
"A person can alternatively be charged under Sections 406 to
409 or Section 420, I.P.C. It is true that the ingredients of
Sections 406 to 409 and the ingredients of Section 420 are
required to be considered. The offence under Section 406, 408
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or 409 and the offence under Section 420 could not go together.
But if the alternative charge is framed, it could not be said that
an alternative charge is illegal and invalid."
.
26. It was submitted that a fraudulent representation was
made that the payment would be made immediately on the arrival of
the consignment and the petitioner failed to honour that promise.
This amounted to the cheating of the informant by the accused. This
submission is not acceptable.
27. The ingredients of cheating were explained by the Hon'ble
Supreme Court in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 as
under:
"10. The ingredients of an offence of cheating are: (i) there
should be fraudulent or dishonest inducement 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 to do or omit to do anything
which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act of omission should cause
or is likely to cause damage or harm to the person induced in
body, mind, reputation or property.
11. One of us (D.P. Mohapatra, J.), speaking for the Bench,
in Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC
168: 2000 SCC (Cri) 786] on facts of that case, has expressed
thus: (SCC p. 177, para 15)
"15. In determining the question it has to be kept in mind
that the distinction between mere breach of contract and
the offence of cheating is a fine one. It depends upon the
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intention of the accused at the time of 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. To hold a person guilty of cheating it is necessary to
show that he had fraudulent or dishonest intention at the
time of making the promise. From his mere failure to keep up
promise subsequently such a culpable intention right at the
beginning, that is, when he made the promise cannot be
presumed."
(emphasis supplied)
12. Finding that the ingredients of the offence of cheating and
its allied offences had not been made out, this Court interfered
with the order of the High Court and quashed the criminal
proceedings.
13. In G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693: 2000 SCC (Cri)
733] this Court in para 7 has stated thus: (SCC pp. 696-97)
"7. As mentioned above, Section 415 has two parts. While
in the first part, the person must 'dishonestly' or
'fraudulently' induce the complainant to deliver any
property; in the second part, the person should
intentionally induce the complainant to do or omit to do a
thing. That is to say, in the first part, inducement must be
dishonest or fraudulent. In the second part, the
inducement should be intentional. As observed by this
Court in Jaswantrai Manilal Akhaney v. State of
Bombay [AIR 1956 SC 575: 1956 Cri LJ 1116] a guilty
intention is an essential ingredient of the offence of
cheating. In order, therefore, to secure the conviction of a
person for the offence of cheating, 'mens rea' on the part
of that person, must be established. It was also observed
in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954
Cri LJ 1806] that in order to constitute the offence of cheating,
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the intention to deceive should be in existence at the time
when the inducement was offered."(emphasis supplied)
14. In Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8 SCC
.
686: 2000 SCC (Cri) 47] dealing with the effect of existence of
arbitration clause in the agreement on criminal prosecution on
the ground that civil proceedings are also maintainable, this
Court has held that quashing of FIR or a complaint exercising
power under Section 482 CrPC should be limited to a very
extreme exception; merely because an act has a civil profile is
not enough to stop action on the criminal side. It is further held
that a provision made in the agreement for referring the
disputes to arbitration is not an effective substitute for a
criminal prosecution when the disputed act constitutes a
criminal offence.
28.
A similar view was taken in G.V. Rao v. L.H.V. Prasad, (2000)
3 SCC 693 wherein it was observed as under:
"7. As mentioned above, Section 415 has two parts. While in the
first part, the person must "dishonestly" or "fraudulently"
induce the complainant to deliver any property; in the second
part, the person should intentionally induce the complainant to
do or omit to do a thing. That is to say, in the first part,
inducement must be dishonest or fraudulent. In the second
part, the inducement should be intentional. As observed by this
Court in Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956
SC 575: 1956 Cri LJ 1116: 1956 SCR 483] a guilty intention is an
essential ingredient of the offence of cheating. In order,
therefore, to secure the conviction of a person for the offence of
cheating, "mens rea" on the part of that person, must be
established. It was also observed in Mahadeo Prasad v. State of
W.B. [AIR 1954 SC 724: 1954 Cri LJ 1806] that in order to
constitute the offence of cheating, the intention to deceive
should be in existence at the time when the inducement was
offered.
8. Thus, so far as the second part of Section 415 is concerned,
"property", at no stage, is involved. Here it is the doing of an act
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or omission to do an act by the complainant, as a result of
intentional inducement by the accused, which is material. Such
inducement should result in the doing of an act or omission to
.
do an act as a result of which the person concerned should have
suffered or was likely to suffer damage or harm in body, mind,
reputation or property. In an old decision of the Allahabad High
Court in Empress v. Sheoram [(1882) 2 AWN 237], it was held by
Mahmood, J.:
"That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, which must be read in the light of the preceding Section 415."
29. It was laid down by the Hon'ble Supreme Court in Ram Jas v. State of U.P., (1970) 2 SCC 740 that there should be a fraudulent or dishonest inducement before a person can be held guilty of cheating.
It was observed:
"3. In recording this finding and conviction, the High Court lost sight of the fact that no such charge was framed against the appellant in the trial court. As we have indicated above, the persons, who were cheated or attempted to be cheated, referred to in the charges framed against the appellant, were Madan Lal, Chunni Lal, or the office of the Relief and Rehabilitation-cum- Settlement Officer, Saharanpur. There was no charge at all relating to any cheating or attempting to cheat the Oath Commissioner. In fact, the case was never brought to Court with the intention of obtaining conviction of the appellant for any offence of cheating in respect of the Oath Commissioner. Not only was there no charge in this respect, but, in addition, the appellant, when questioned under Section 342 of the Code of Criminal Procedure after the prosecution evidence had been recorded, was not asked to explain evidence relating to such a charge of cheating the Oath Commissioner. No doubt, there was ::: Downloaded on - 01/08/2024 20:32:12 :::CIS 19 Neutral Citation No. ( 2024:HHC:6153 ) mention of the commission of forgery of affidavits; but the mention of the commission of that offence could not possibly lead the appellant to infer that he was liable to be convicted for .
abetting the offence of cheating the Oath Commissioner.
Further, in recording this conviction, the High Court did not even case to examine in detail whether all the ingredients of the offence had been established by the prosecution evidence. The only finding of fact was that the appellant, who was known to the Oath Commissioner, wrongly identified some other person as Govind Ram and got the affidavit attested by the Oath Commissioner as if it was being sworn by Govind Ram. This act of wrong identification committed by the appellant cannot amount to the offence of cheating by personation. Cheating is defined in Section 415 IPC, which is as follows:
"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'."
The ingredients required to constitute the offence of cheating are--
(i) there should be fraudulent or dishonest inducement 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 to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.::: Downloaded on - 01/08/2024 20:32:12 :::CIS 20
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4. In the present case, the finding of fact recorded only shows that the Oath Commissioner was induced to attest the affidavit by the deception practised by the appellant in wrongly .
identifying a person as Govind Ram when he was in fact not Govind Ram. That act done by the Oath Commissioner of attesting the affidavit could not, however, possibly cause any damage or harm to the Oath Commissioner in body, mind, reputation or property. The Oath Commissioner was obviously not induced to deliver any property to anybody by this wrong identification, nor was he induced to consent that any person should retain any property. Thus, the facts found did not constitute the offence of cheating at all. The conviction for an offence under Section 419, substantively or with the aid of Section 109 IPC, could only have been justified if the facts proved constituted all the ingredients of the offence of cheating.
In recording the conviction, the High Court neglected to see whether all those ingredients were proved. On the face of it, though the Oath Commissioner was induced to attest the affidavit by wrong identification made by the appellant, there was no likelihood of any damage or harm to him in body, mind, reputation or property, so that the Oath Commissioner was never cheated. Clearly, therefore, the High Court fell into an error in recording the conviction of the appellant for the offence under Section 419, read with Section 109 IPC and substituting that conviction in place of the conviction for offences for which he had been punished by the trial court.
30. Similar is the judgment in V.Y. Jose v. State of Gujarat, (2009) 3 SCC 78 wherein it was observed:-
"14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
(i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property, or to consent that any person shall retain any property and finally intentionally inducing that ::: Downloaded on - 01/08/2024 20:32:12 :::CIS 21 Neutral Citation No. ( 2024:HHC:6153 ) person to do or omit to do anything which he would not do or omit.
For the purpose of constituting an offence of cheating, the .
complainant is required to show that the accused had fraudulent or dishonest intentions at the time of making a promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making the initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out."
31. This position was reiterated in Raju Krishna Shedbalkar v.
State of Karnataka, 2024 SCC OnLine SC 200 wherein it was observed:
"7. A perusal of the aforesaid provision shows that the offence of cheating is in two parts. The first is where a person fraudulently or dishonestly deceives another in inducing that person to deliver any property to any person etc. The second part of the offence would be made out if somebody is deceived to do an act which causes damage or harm to that person "in body, mind, or reputation or property is said to have cheated".
Time and again, this Court has reiterated that in order to make out an offence under cheating the intention to cheat or deceive should be right from the beginning. By no stretch of the imagination, this is even reflected from the complaint made by the informant.
8. In the case of Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168, this Court held as under:
"15. In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of 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 ::: Downloaded on - 01/08/2024 20:32:12 :::CIS 22 Neutral Citation No. ( 2024:HHC:6153 ) 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. To hold a .
person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
(Emphasis supplied)
9. Further, in the case of Indian Oil Corporation v. NEPC India Ltd. (2006) 6 SCC 736 this position was reiterated in the following manner:
33. The High Court has held that a mere breach of contractual terms would not amount to cheating unless the fraudulent or dishonest intention is shown right at the beginning of the transaction and in the absence of an allegation that the accused had a fraudulent or dishonest intention while making a promise, there is no "cheating". The High Court has relied on several decisions of this Court wherein this Court has held that dishonest intent at the time of making the promise/inducement is necessary, in addition to the subsequent failure to fulfil the promise.
Illustrations (f) and (g) to Section 415 make this position clear:
"(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 contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."::: Downloaded on - 01/08/2024 20:32:12 :::CIS 23
Neutral Citation No. ( 2024:HHC:6153 ) (emphasis supplied)
32. In the present case, there are no averments in the .
complaint that the intention of the accused was fraudulent or dishonest right from the beginning. Hence, the essential ingredient of cheating is not satisfied.
33. In the present case, there is no averment in the complaint that the intention of the petitioner was fraudulent. A simple allegation has been made that the informant had supplied the apples worth ₹2,79,30,560/-, the petitioner paid an amount of ₹2,18,50,000/- and an amount of ₹60,80,557/- is due. This shows that the FIR discloses that the petitioner owes some money to the informant which he had failed to pay. This is purely a civil dispute and is being converted into criminal litigation. It was laid down by the Hon'ble Supreme Court in Vesa Holdings Private Limited and Anr. vs. State of Kerala and Ors., (2015) 8 SCC 293 that where the FIR does not disclose the criminal intention, the criminal proceedings cannot continue. It was observed: -
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception, there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view, the complaint does not ::: Downloaded on - 01/08/2024 20:32:12 :::CIS 24 Neutral Citation No. ( 2024:HHC:6153 ) disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of .
justice. In our opinion in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."
34. It was laid down in Kapil Agarwal vs. Sanjay Sharma, (2021) 5 SCC 524: 2021 SCC OnLine SC 154 that Section 482 of Cr.P.C. is designed to ensure that criminal proceedings are not permitted to generate into weapons of harassment. It was observed:
"18.1. As observed and held by this Court in a catena of decisions, inherent jurisdiction under Section 482 CrPC and/or under Article 226 of the Constitution is designed to achieve a salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapons of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in the exercise of inherent powers, such proceedings can be quashed."
35. It is apparent from the allegations made in the complaint that the civil dispute is being given the colour of criminal litigation, which is not permissible as laid down by the Hon'ble Supreme Court in R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 and Usha Chakraborty v. State of W.B., 2023 SCC OnLine SC 90.
36. Therefore, the FIR does not disclose the commission of any offence of cheating.
::: Downloaded on - 01/08/2024 20:32:12 :::CIS 25Neutral Citation No. ( 2024:HHC:6153 )
37. The FIR specifically states that the petitioner had assured the informant to make the payment on the delivery of the apple. It .
nowhere mentions that apples were entrusted to the petitioner with the specific purpose and the petitioner failed to discharge that purpose; therefore, the ingredients of Section 406 of IPC are not satisfied.
38. The FIR does not mention that the property was acquired by the petitioner honestly rather it shows that apple boxes were delivered by the informant to the petitioner. Hence, the ingredients of the Section 403 of IPC are also not satisfied.
39. Consequently, the FIR does not disclose the commission of any cognizable offence, and the continuation of the proceedings will amount to the abuse of the process of the law. Hence, the FIR is ordered to be quashed.
40. The present petition stands disposed of and so are the pending miscellaneous applications, if any.
(Rakesh Kainthla) Judge 1st August, 2024.
(saurav pathania) ::: Downloaded on - 01/08/2024 20:32:12 :::CIS