Allahabad High Court
Avinash Pandey And Another vs State Of U.P. Thru. Prin. Secy. Home, And ... on 7 May, 2022
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 2332 of 2022 Applicant :- Avinash Pandey And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, And Another Counsel for Applicant :- Vishva Nath Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicants and learned A.G.A.
This petition has been filed to quash the charge sheet dated 9.9.2019 as well as entire criminal proceedings arising out of case crime no. 445 of 2018 under Sections 419, 420, 467, 468, 471, 406 I.P.C. against the applicants but continued under Sections 504, 506 I.P.C.
Learned counsel for the applicant submitted that the complainant lodged the F.I.R. against the applicants and other co-accused persons under Sections 419, 420, 467, 468, 471, 406, 504, 506 I.P.C.. On perusal of the entire allegation in the F.I.R. it appears that the offence does not travel beyond under Section 504, 506 I.P.C. On perusal of the F.I.R. it indicates that Rs. 4 lacs was given to Anil Pandey and his son-Vivek Pandey and Rs. 2 lacs was deposited in the account of Pushpa Pandey. On the perusal of the entire F.I.R. it appears that transaction of the money was made between Anil, Vivek and Pushpa Pandey not with the applicants Learned counsel for the applicant in support of his submission relied upon the judgment of Hon'ble Apex court in the case of Archana Rana Vs. State of U.P. and another (2021) 3 SCC 751, the relevant paragraphs of the judgment are given below:-
"7. Having heard the learned counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the respondent State and having gone through the averments in the complaint and the charge-sheet, even if the averments made in the complaint are taken on their face, they do not constitute the ingredients necessary for the offence under Sections 419 and 420 IPC. As observed and held by this Court in R.K. Vijayasarathy [R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri) 454] , the ingredients to constitute an offence under Section 420 are as follows:
(i) a person must commit the offence of cheating under Section 415; and
(ii) the person cheated must be dishonestly induced to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC.
8. "Cheating" is defined under Section 415 IPC. The ingredients to constitute an offence of cheating are as follows:
(i) there should be fraudulent or dishonest inducement of a person by deceiving him:
The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived.
Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating.
9. Now, keeping in mind the relevant ingredients for the offences under Sections 419 and 420 IPC, as noted hereinabove, it is required to be considered whether the averments in the complaint taken on their face do constitute the ingredients necessary for the offences under Sections 419 and 420 IPC, as alleged.
10. Having gone through the complaint/FIR and even the charge-sheet, it cannot be said that the averments in the FIR and the allegations in the complaint against the appellant constitute an offence under Sections 419 and 420 IPC. Whatever allegations are made for the offence with respect to inducement and/or even giving Rs 5,00,000 for obtaining the job, are made against the appellant's husband, co-accused. There are no allegations at all that the appellant herein induced the complainant to get the job and the amount of Rs 5,00,000 was given to the appellant herein. Therefore, even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of cheating are missing. Therefore, this was a fit case for the High Court to exercise the jurisdiction under Section 482 CrPC and to quash the criminal proceedings against the appellant herein for the offences under Sections 419 and 420 IPC. The High Court has failed to exercise the jurisdiction vested in it by not quashing the criminal proceedings against the appellant herein for the offences under Sections 419 and 420 IPC.
11. Now so far as the FIR/chargesheet/criminal proceedings against the appellant herein for the other offences, namely, under Section 323, 504 and 506 IPC are concerned, the High Court has rightly not quashed the criminal proceedings qua the said offences.
12. In view of the above and for the reasons stated above, the present appeal is allowed in part. The criminal proceedings against the appellant herein for the offences under Section 419 & 420 IPC arising out of Case Crime No. 153/2016, registered with P.S. Kotwali, District Azamgarh, pending in the Court of learned Chief Judicial Magistrate, Azamgarh are hereby quashed and set aside.
13.The criminal proceedings against the appellant herein for the offences under Section 323, 504 and 506 IPC , pending in the Court of learned Chief Judicial Magistrate, Azamgarh, shall be continued as per the chargesheet and shall be disposed of in accordance with law, on their own merits.
Considering the entire facts and circumstances of the case it transpires that even if the allegations made in the F.I.R. are taken on their face value, they does not constitute the necessary ingredients for the offence under Sections 419, 420, 467, 468, 471 and 406 I.P.C., as there is no entrustment of money to the applicants thus, the offence against the applicant is not made out under Section 419, 420, 467, 468, 471 and 406 I.P.C. So the cognizance as well as charge sheet against the applicant is quashed up to that extent. Only the offence under Section 504, 506 I.P.C. is made out. Thus, the summoning order passed by the court below liable to be quashed.
The impugned summoning order is hereby rejected. Learned trial court is directed to pass a fresh cognizance order taking into consideration the view taken by this Court.
The criminal proceedings against the applicants for offence under Section 504, 506 I.P.C. pending before the court shall be continued.
The petition is, accordingly, disposed of.
Order Date :- 7.5.2022 Anuj Singh