Jharkhand High Court
Reliance Infocom Limited ( Anil ... vs State Of Jharkhand & Anr on 29 February, 2012
Equivalent citations: 2012 (3) AIR JHAR R 72
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P. No.1824 of 2011
Reliance Infocom Limited and another....Petitioners
VERSUS
State of Jharkhand and another....Opposite Parties
CORAM: HON'BLE MR.JUSTICE R.R.PRASAD
For the Petitioners: Mr.P.K.Prasad, Sr. Advocate
For the State :J.C to G.P IV
For the Opp.party no.2: Mr.Ananda Sen, Advocate
7/ 29.2.12. Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite party no.2.
This application has been filed for quashing of the entire criminal proceeding of C.P case no.687 of 2008 including the order dated 30.3.2009 passed by the Judicial Magistrate, 1st class, Dhanbad whereby and whereunder cognizance of the offence punishable under Section 420 of the Indian Penal Code was taken against the petitioners.
The case of the complainant as has been made out in the complaint petition is that Reliance Infocom Limited came out with a scheme in January, 2007 that every recharge voucher of Rs.2007 having validity period of one year will have talk time of Rs.1638/- and at the same time there would be 2007 free S.M.Ss. After knowing about that scheme, the complainant got the mobile which had been purchased in the name of his wife recharged at Mobile World, Dhanbad with recharge voucher of Rs.2007/-. After using it for some time when the talk time was still left with Rs.1550/- brother of the complainant took the Mobile with him to Gaya but suddenly talk time was shown as zero. When the brother did consult customer care, it was told that due to some technical problem, it has happened. On the very next day, Mobile was recharged with a talk time of Rs.245/-. In the month of October, 2007, the complainant when checked the date of SMS received could know that he had been cheated by the accused as the Mobile has been cunningly recharged with recharge voucher of Rs.699/- with talk time of Rs.249/- in place of recharge voucher of Rs.2007/- with a validity period of one year having talk time of Rs.245/- only that too without there being any free SMS. On such complaint, cognizance of the offences was taken, vide order dated 30.3.2009 which is under challenge.
Mr. Prasad, learned Sr. Counsel appearing for the petitioners submits that accepting the entire allegation made in the complaint petition to be true, no offence is made out under Section 420 of the Indian Penal Code and moreover, the petitioner no.2 has never been alleged to have been in-charge of day to-day affairs of the company and that at best, it can be a case of civil dispute and not a case of criminal liability as it is never the case of the complainant that he was fraudulently and dishonestly induced to purchase the recharge voucher of Rs.2007/-. If this element is lacking, no case of cheating is made out.
Learned counsel in support of his submission has referred to a decision rendered in a case of V.P.Shrivastava vs. Indian Explosives Limited and others [(2010) 10 SCC 361].
As against this, Mr.Sen, learned counsel appearing for the opposite party no.2 submits that it is a clear cut case of cheating as initially scheme was floated for RIM Mobile that on purchase of recharge coupon for a value of Rs.2007/- there would be 2007 free SMS and will have talk time of Rs.1638/-. At one point of time, talk time was left for Rs.1550/-, but suddenly it came to zero and when complaint was made with the customer care, it was recharged with a talk time of Rs.245/- and when again a compliant was lodged, it was recharged for Rs.699 wherein talk time was given Rs.249/- but there was no free SMS.
Under this circumstance, the complainant can certainly be said to have been cheated as the complainant was induced to have a recharge coupon of Rs2007/- with talk time of Rs.1638 and free SMS but it was never provided and therefore, order taking cognizance never warrants to be interfered with.
In the context of the submission, one needs to take notice of the provision as contained in Section 415 which reads 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'.
From bare reading of the section, it does appear that a person would be held guilty for cheating if at the time of making promise, he had fraudulent or dishonest intention to retain the property or to induce the person so deceived to do something which he would not otherwise do.
Therefore, in order to attract the offence of cheating following ingredients should be there:
(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."
Thus, the first clement necessary for constituting offence of cheating is a deception of the complainant by the accused. Unless there is deception, the offence of cheating does not get attracted. After deception is practiced, the person deceived should get induced to do or omit to do something. Then the question arises as to what is the deception ? In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract.
Here in the instant case, on a scheme being floated that for every recharge coupon of Rs.2007/- there would be talk time of Rs.1638.13 and the free SMSs to the extent of 2007, the complainant purchased a recharge voucher of Rs.2007 but he did not get either free S.M.S or the talk time as had been stipulated and thereby it does make out a case of breach of promise/contract in absence of one of the ingredients of cheating i.e, there was fraudulent or dishonest inducement. Moreover, petitioner no.2 has never been alleged to have been in-charge of day to- day affairs of the Mobile Company. Thus, for the reasons mentioned above, the prosecution seems to be bad.
Accordingly, the entire criminal proceeding of C.P case no.687 of 2008 including the order dated 30.3.2009 is hereby quashed.
In the result, this application is allowed.
( R.R.Prasad, J.) ND/