Allahabad High Court
Smt. Krishna Tyagi vs State Of U.P And Another on 7 December, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 11719 of 2005 Applicant :- Smt. Krishna Tyagi Opposite Party :- State Of U.P And Another Counsel for Applicant :- Tej Pal, Sukhendu Pal Singh Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri Sukhendu Pal Singh, learned counsel for applicant and learned A.G.A. for State of U.P.
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 entire proceedings in Case No. 279 of 2005 (State Vs. Barfi Devi and others), under Sections 420, 467, 468 I.P.C., Police Station Shahganj, District Agra pending in the Court of 1st Additional Civil Judge/Judicial Magistrate, Agra.
3. First Information Report was lodged by respondent-2 and contents of F.I.R. reads as under:
^^lsok esa] Jheku~ uxj iqfyl v/kh{kd vkxjk egksn; fuosnu gS fd Jherh cQhZ nsoh iRuh Jh jathrk fuoklh xzke nkSjSBk ua0&1 Fkkuk 'kkgxat vkxjk us viuh d`f"k Hkwfe [kljk ua0 18 jdck 10 ch?kk 13 fcLok 15 foLokalh dks dsUnzh; deZpkjh lgdkjh vkokl lfefr fyfeVsM vkxjk ds uke fnukad 15-2-83 ctfj;s cSukek rhu yk[k iUnzg gtkj esa csap fn;k Nk;k izfr layXu gSA lfefr us mDr [kjhnh gqbZ Hkwfe ij lSfud uxj ikVZ&1 ds uke ls lM+d vkfn dk izkfo/kku dj 66 IykV cukdj fofHkUu yksxksa dks cSukek dj dCtk ns fn;s mDr IykVksa esa ls IykV ua0 55 ftldk {ks=Qy 281&765&7 oxZ ehVj dks lfefr us fnukad 14-10-1983 dks :i;s 6740@& esa Jh ds0Mh0 frokjh iq= Jh ykyef.k frokjh fuoklh Fkkuk lnj cktkj vkxjk dSUV gky fuoklh ,y 1317 lsDVj vkbZ dkuiqj jksM eksty okMZ fo|kFkhZ nsoh 'kgj y[kuÅ dks cSukek dj dCtk ns fn;k Nk;kizfr layXu gS Jhfrokjh us vius IykV ua0 55 dk eq[r;kjukek vke Jh pUnz izdk'k nhf{kr iq= Jh jked`".k nhf{kr fuoklh 2@67 ukeusj vkxjk dSUV ds uke fnukad 7-3-2002 dks dj fn;k Nk;kizfr layXu gSA izkFkhZ us viuh iq=h Jherh vkUuh 'kekZ iRuh Jh lat; mik/;k; ds uke fnukad 23-2-2004 dks Jh pUnz izdk'k nhf{kr ls mDr IykV ua0 55 ckmUM~h oky cus gq;s gS fd Jherh dkUrk nsoh iRuh Jh egkjkt flag R;kxh fuoklh 203 U;w vkn'kZ uxj cYds'oj vkxjk ,oa Jherh d`".kk R;kxh iRuh Jh ch0,l0 R;kxh fuoklh 218 lh 'kkUrh uxj vkxjk us [kljk ua0 8 jdck 10 ch?kk] 13 fcLok 15 fo'okalh esa ls ek0 ,e ch?kk tehu dk cSukek fnukad 20-9-2001 dks ,d yk[k :i;s es Jherh cQhZ nsoh us djk fy;k tks iw.kZr% voS/kkfud gS D;ksafd Jherh cQhZ nsoh vius [kljk ua0 18 dh d`f"k Hkwfe dk cSukek lu~ 1983 esa gh dsUnzh; deZpkjh lgdkjh lfefr fyfeVsM vkxjk dks dj dCtk ns pqdh FkhA ftldh iw.kZ tkudkjh Jherh dkUrk nsoh iRuh Jh egkjkt flag R;kxh o Jherh d`".kk R;kxh rFkk muds ifr;ksa dks HkhA bu yksxksa us tkucw>dj dsoy ml fy;s voS/k djk;k fd okLrfod Hkw@IykV Lokfe;ksa ls >a>Vdj o Mjk /kedk dj iSlk ,sBk tk ldsA Jherh cQhZ nsoh dk nfl;ksa o"kZ ls vkxjk esa u jgdj uks;Mk esa jguk crk;k gS Jherh dkUrh nsoh o Jherh d`".kk R;kxh o muds ifr;ksa us lkft'ku Jherh cQhZ nsoh dks dj lkftl vijk/k fd;k x;k gS D;ksafd lSfuduxj Qsl izFke ds lHkh IykVksa ij iqjkus edku o ckmUM~h oky igys cuh gqbZ Fkh izkFkhZ mldh iq= o ifjokj ds vU; lnL; tc Hkh IykV ij tkrs gSa rks ;s yksx o buds fgek;rh Hkn~nh&Hkn~nh v'kksHkuh; xkfy;ka nsrs gq;s tku ls ekjus dh /kedh nsrs gSa dgrs gSa fd bl IykV ij fuekZ.k 'kq: fd;k rks xksyh ekj nsxsA IykV dks vkt NksM+dj ?kj cSB tkvks ;gh yksx IykV ij j[kh gqbZ bZVksa esa ls dbZ ckj pksjh ls jkr dks fjD'kksa ls Hkjdj bZV mBk ys x;sA vr% Jheku~ th ls vuqjks/k gS fd mijksDr nksf"k;ka ds fo:) vfHk;ksx iathd`r djkdj vko';d oS/kkfud dk;Zokgh djkus dh d`ik djsa IykV ua0 55 ds fuekZ.k dk;Z ls izkFkhZ dk lg;ksx nsus dh O;oLFkk djus dh d`ik djsaA** "To, Superintendent of Police City, Agra. Sir, It is submitted that Smt. Barfi Devi w/o Shri Ranjeeta r/o Dauretha No. 1, PS - Shahganj, Agra, sold her agricultural land bearing Khasra no. 18, measuring 10 bigha, 13 biswa and 15 biswansi in favour of Kendriya Karmchari Shahkari Awas Samiti Limited, Agra, on 15.02.83 through a sale-deed for a consideration of three lakh fifteen thousand rupees, the copy of which is annexed herewith. The Samiti, having developed 66 plots, with the plan of roads etc., in the name of Sainik Nagar Part-1, gave possession to several persons through sale-deeds. Among the aforesaid plots, the Samiti gave the possession of the plot no. 55, measuring 281-765-7 square metre to Shri KD Tiwari s/o Lalmani Tiwari r/o PS - Sadar Bazaar, Agra Cantt., current address L-1317, Sector - I, Kanpur Road, Mozal ward, Vidyarthi Devi, City - Lucknow, for a consideration or Rs. 6740/- through a sale-deed on 14.10.1983, the copy of which is annexed herewith. Shri Twiari appointed Shri Chandra Prakash Dixit s/o Shri Ramkrishna Dixit r/o 2/67, Namner, Agra Cant, his General Power of Attorney to his plot no. 55 on 07.03.2002, the copy of which is annexed. The applicant secured the allotment of the aforesaid plot no. 55, with a boundary wall constructed all around, in favour of his daughter Smt. Anni Sharma w/o Shri Sanjay Upadhyay on 23.2.2004 from Shri Chandra Prakash Dixit. Smt. Kanta Devi w/o Shri Maharaj Sing Tyagi r/o 203 New Adarsh nagar, Balkeshwar, Agra and Smt. Krishna Tyagi w/o Shri BS Tyagi r/o 218-C, Shantti Nagar, Agra got a sale-deed for 1 bigha land out of khasra no. 8, measuring 10 bigha 13 biswa and 15 biswansi executed in favour of Smt. Barfi Devi on 20.09.2001 for a consideration of Rs. 01 lakh; which is completely illegal because Smt. Barfi Devi had given possession of the agricultural land being khasra no. 18 in favour of Kendriya Karmchari Shahkari Samiti Limited, Agra. Smt. Kanti Devi w/o Shri Mahraj Singh Tyagi and Smt. Krishna Tyagi and their husbands also had full knowledge thereof. These persons got this illegal sale-deed executed so that they could extort money from the real land/plot owners by picking up disputes with them and causing intimidation. Smt Barfi Devi is stated to have been residing at Noida instead of Agra for tens of years. Smt Kanti Devi, Smt Krishna Tyagi and their husbands under some conspiracy found out Smt Barfi Devi and got a sale deed executed of one bigha land out of land mentioned at khasra no 18. The said sale-deed does not mention where this one bigha land, out of khasra no 18, is situated. In fact Smt Barfi Devi has got executed the sale deed of this one bigha in 2001, hence, it is completely illegal. Both the parties have conspiratorially committed an offence because boundary walls were already constructed and house numbers were allotted to all the plots of the Sainik Nagar, Phase-I. Whenever applicant, his son and other family members visit the plot, these persons and their cohorts use indecent language and threaten to kill them. They hold out a threat, "If you dare to start construction on this plot, you shall be shot down. Leave the plot today itself and sit at home unconcerned with it". These persons stole away the bricks, out of the ones kept at the plot, several times by the night. Hence, it is requested that case be registered against the aforesaid persons and necessary action be taken. Please ensure to help the applicant in the construction at plot no 55."
(English Translation by Court)
4. Police after investigation submitted charge-sheet under Section 420, 467, 468 I.P.C. whereupon Magistrate has taken cognizance. It is submitted that there is no allegation of forgery and offence under Section 420 is not made out.
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:
cheating;
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, mens rea of accused at the time of making inducement and act or 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 the 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, the 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."
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."
16. The 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. The 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 which I was also a member in Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
19. In the case in hand, allegations contained in F.I.R. show that Barfi Devi has already sold her entire Khasra No. 18, area 10 bigha 13 biswa 15 biswanshi to Kendriya Karmchari Sahkari Awas Samiti Limited and given possession thereof and this fact was well known to Smt. Kanta Devi, Smt. Krishna Tyagi and also their husbands, but they deliberately and intentionally in order to defraud money from plot owners got a sale-deed executed by Barfi Devi in respect of one bigha land in 2001 and thereafter started harassing land owners and also threatened dire consequences and to kill them in case they start construction at disputed land. It is also said that they have taken away many a time bricks from the land. If the allegations contained in the F.I.R. are taken to be true, it cannot be said that no offence is made out. Rest of the aspects whether applicant is bona fide purchaser or not is a matter of evidence which is not to be seen by this Court at this stage.
20. At the stage of charge sheet, Court concerned has to examine only investigation and documents collected by Police, who submitted charge sheet and defence will be examined during trial when defence is adduced by both the parties.
21. Similarly, while seeking a prayer for quashing of charge sheet in application under Section 482 Cr.P.C., this Court also cannot examine any defence of accused, which has yet to be placed before Court below. Stage of placing defence of accused does not arise at the stage of charge sheet and, therefore, this Court also will not examine such defence at this stage.
22. Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Recently in Md. Allauddin Khan Vs. The State of Bihar and others (2019) 6 SCC 107, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (emphasis added)
23. Very recently, Apex Court in Criminal Appeal No. 1817 of 2019 (M. Jayanthi Vs. K.R. Meenakshi and another) decided on 02.12.2019 has held:
"It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged."
24. No material irregularity in the procedure followed by Court below, in the light of above authorities, could be pointed out. It is not a case of grave injustice justifying interference in this application at this stage.
25. In view thereof, I do not find any illegality or infirmity in impugned proceedings. This application lacks merit and is accordingly dismissed.
26. Interim order, if any, stands vacated.
Order Date :- 07.12.2019 PS