Allahabad High Court
Nishant Garg vs State Of U.P. And Others on 4 December, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 2987 of 2005 Applicant :- Nishant Garg Opposite Party :- State of U.P. and Others Counsel for Applicant :- Anil Kumar Bajpai Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri A.K. Bajpai, learned counsel for applicant and learned A.G.A. for State.
2. This application under Section 482 Cr.P.C. has been filed praying for quashing of charge sheet No. 2/2005 in Case Crime No. 295 of 2002, under Sections 420, 465, 467, 468, 471 IPC as well as proceedings initiated in Criminal Case No. 501 of 2005, pending in the Court of chief Judicial Magistrate, Saharanpur.
3. It is contended that even if what is stated in charge sheet are taken to be correct no case under Sections 420, 465, 467, 468, 471 IPC is made out and applicant has been falsely implicated.
4. The entire charge-sheet reads as under:
^^eq-v-la- 295@02 /kkjk 420] 465] 467] 468] 471] vkbZ-ih-lh-A Fkkuk udqM tuin lgkjuiqjA ¿tka-la- 4980@03À vkjksi&i= ¼ewy½ fn-27-9-02 izFke lwpuk la- 127@02 rk- 11-1-05 rk- 27-9-02 vkjksi&i= la[;k 2@05 vijk/k la[;k 295@ 02 dsl- ua- 501@04 vfHk;qDrksa ds uke o irs] ftudk pkyku fd;k x;k gksA Jh fu'kkUr xxZ iq= lqfer izdk'k xxZ fu- 424 VkÅu gky lgkjuiqj gky &,p-,e- 2@1295@113 fe'ku dEik.M lgkjuiqjA Jheku~ th] Jh lR; ujk;u JhokLro] vij ftykf/kdkjh ¼foRr ,oa jktLo½ us Fkkuk udqM ij fn- 27-9-02 dk eq- mijksDr iathd`r djk;k FkkA ftldh foospuk 'kklukns'k ds ikyu esa bl dk;kZy; }kjk dh x;hA xzke udqM dk gnwn rglhy udqM tuin lgkjuiqj ds xkVk la- 704 jdcbZ 1 ch?kk 11 foLok 5 foLokalh tehu Jh /keZ flag iq= Jh eke jkt flag fu- lqdrky Fkkuk udqM lgkjuiqj ds uke ntZ gSA Jh /keZ flag us mDr xkVk dks rhu fgLlksa esa fnukad 18-4-83 dks Jherh 'k'kh xqIrk iRuh Jh mekdkUr xqIrk fu- iqj }kjk jksM lgkjuiqj] jktsUnz izlkn R;kxh iq= Jh fodze flag R;kxh fu- jsoys jksM lgkjuiqj rFkk Jh lsod jke iq= esgUnh izlkn] jtuhdkUr mekdkUr o vjfoUn dqekj iq=x.k Jh lsod jke fu- udqM ds uke fodz; dj fn;k FkkA mDr fodz; i= dze'k% 3953] 3954] 3955 vfHkys[kksa esa ntZ gSA mDr cSukeska ds vk/kkj ij Jh ds-,u- f}osnh rglhynkj udqM us fnukad 20-3-05 dks ukekarj.k vkns'k ikfjr fd;k x;kA ftykf/k'k lgkjuiqj ds vkns'kkuqlkj vij ftykf/kdkjh ¼foRr ,oa jktLo½ lgkjuiqj dks U;k;ky; esa okn la- 1@87 &88 vUrxZr /kkjk 166 ¼6½ m-iz- tehankjh fouk'k vf/kfu;e 1950 ds vUrxZr nk;j fd;k x;k rRdkyhu vij ftykf/dkjh foRr ,oa jktLo Jh lh-,y- iq"dj }kjk fnukad 15-2-90 dks rglhynkj udqM dk fnukad 29-3-85 dk ikfjr nkf[ky [kfjt vkns'k fujLr djrs gq;s leLr Hkwfe xkVk la- 704 jdcbZ&1&11&5 ch?kk ljdkj ds gd esa dj fn;k foRr ,oa jktLo lgkjuiqj ds vkns'k vkt Hkh izHkkoh gSaA Jh fu'kkUr xxZ iq= Jh lqfer izdk'k xxZ fu- 2@1295@113 fe'ku dEikm.M lgkjuiqj tu cq>dj /kks[kk/kMh djds jktsUnz izdk'k 'kekZ dzsrk mijksDr ds eq[R;kjs vke ds vk/kkj ij fnukad 15-11-95 dks 3 cSukesa ds tfj;s Jh txiky iq= Jh vrjflag iq= Jh gjQwy flag au- eqtQ~Qjkckn ds i{k esa fodz; dj fn;kA bl izdkj fu'kkUr xxZ us tku cq>dj vukf/kd`r] vfu;fer Ny diV iwoZd tky lkth djds jkT; ljdkj esa fufgr dh x;h lEifRr dk fodz; dj /kkjk 420] 465] 462] 468] 471 vkbZ-ih-lh- dk vijk/k fd;k tks ekSf[kd ,oa vfHkys[kh; lk{; ls izekf.kr gksrk gSA vr% Jh fu'kkUr xxZ iq= fu;qDrk jokuk&3 ds fo:) vkjksi U;k;ky; izsf"kr fd;k tkrk gSA lcwr ryc dj vfHk;qDr dks mfpr ltk nsus dh d`ik djsaA** "Case Crime No 295/02 u/s 420, 465, 467, 468, 471 IPC P.S. Nakud, District - Saharanpur. (Ja.S.4980/03) Charge-sheet (Original) Dated 27.9.02 First Information No 127/02 Date 11.1.05 Date 27.9.02 Charge sheet no. 2/05 Crime No. 295/02 Case no. 501/04 Names and addresses of the accused who have been challaned.
Sri Nishant Garg s/o Sumit Prakash Garg R/o 424 Town Hall, Saharanpur H.M.2/ 1295/ 113 Mission Compound, Saharanpur Sir, Sri Satya Narayan Srivastava, Addl District Magistrate (Finance and Revenue) had on 27.9.02 got the aforesaid case registered at P.S. Nakud whose investigation was conducted by this office in accordance with the Government Order. The land bearing gata no 704 area 1 bigha 11 bishwa 5 bishwani situated at Village Nakud ka Hadud, Tehsil Nakud, Distt Saharanpur is mentioned in the name of Sri Dharm Singh s/o Sri Mam Raj Singh r/o Suktaal, PS Nakud, Saharanpur. Sri Dharam Singh had on 18.4.83 sold the aforesaid gata in three parts to Smt Shashi Gupta w/o Sri Umakant Gupta r/o Purdwara Road, Saharanpur, Rajendra Prasad Tyagi s/o Sri Vikram Singh Tyagi r/o Railway Road, Saharanpur and Sri Sewak Ram s/o Mehandi Prasad, Rajnikant, Umakant and to Arvind Kumar sons of Sri Sewak Ram r/o Nakud. The aforesaid sale deeds 3953, 3954 and 3955 respectively are registered in the records. On the basis of aforesaid sale-deeds, Shri KN Dwivedi, Tehsildar, passed an order for mutation on 20.03.2005. As per the order of District Magistrate, Saharanpur, suit no. 1/87-88 under the provision of Section 166(6) of the UP Zamindari Abolition and Land Reforms Act, 1950, was filed in the court of Additional District Magistrate (Finance and Revenue), Saharanpur. Shri LC Pushkar, the then Additional District Magistrate (Finance and Revenue), while cancelling the order dated 29.03.1985 for mutation passed by Tehsildar, Nakud, gave the whole of the land being gata no. 704 measuring 1-11-5 in favour of the government. This order of ADM (Finance and Revenue) is still effective. Shri Nishant Garg s/o Sumit Prakash Garg r/o 2/1295/113 Mission Compound, Saharanpur, while deliberately practising deception, sold the land on 15.11.1995 on the basis of 3 sale-deeds through general power of attorney of Rajendra Sharma, the aforesaid purchaser, in favour of Shri Jagpal Singh s/o Shri Atar Singh s/o Harphool Singh r/o Muzaffarabad. In this way, Nishant Garg, in a deliberate, unauthorised and irregular manner, deceitfully and fraudulently sold the land vested in the government, thereby committing an offence u/s 420, 465, 462, 468, 471 IPC, which is corroborated by the oral and documentary evidence. Hence, a charge-sheet is being sent to the Court against Shri Nishant Garg s/o Niyukta through Rawanaa - 3. The evidence may please be summoned and accused persons may be punished accordingly."
(English Translation by Court)
5. 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."
6. In order to attract allegations of "cheating", following things must exist:
(i) deception of a person;
(ii) (A) fraudulent or dishonest inducement of that person,
(a) to deliver any property to any person; or,
(b) to consent that any person shall retain any property, (B) intentional inducing that person to do or omit to do any thing,
(a) which he would not do or omit if he was not so deceived, and,
(b) such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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)
14. 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.
15. 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." (emphasis added)
16. 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.
17. 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).
18. 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 Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
19. In the present case considering the material in the light of above exposition of law, it is evident that Dharam Singh initially owned land in question and transferred the same in fragment to various persons including Rajendra Prasad, who executed a power of attorney in favour of applicant and in furtherance thereof he executed further sale deed on 15.11.1995. These documents are not forged and may be illegal on the ground that since fragmentation was bad, therefore, transfer was bad but illegality in action and forgery of document are two different things. By no stretch of imagination offence under Sections 420, 465, 467, 468, 471 IPC are attracted in the case in hand.
20. In the result, application is allowed. Impugned charge sheet No. 2 of 2005 in Case Crime No. 295 of 2002, under Sections 420, 465, 467, 468, 471 IPC and proceedings in Criminal Case No. 501 of 2005, are hereby quashed.
Order Date :- 04.12.2019 AK