Jharkhand High Court
Mrs.Manorma Verma & Anr vs State Of Jharkhand & Anr on 7 August, 2013
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P. No.1414 of 2009
1.Mrs. Manorma Verma
2. Mr. Bimal Kumar Verma...................Petitioners
VERSUS
State of Jharkhand and another.......Opposite Parties
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner: Mr.Mukesh Kumar Sinha
For the State : Mr.A.P.P
For the O.P.No.2 : Mr.Rakesh Kumar Sinha
8/ 7.8.13. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State.
This application has been filed for quashing of the entire criminal proceeding of Complaint Case no.2201 of 2008 including the order dated 27.7.2009 whereby and whereunder cognizance of the offence punishable under Section 418 of the Indian Penal Code was taken against the petitioners.
Before adverting to the submissions advanced on behalf of the petitioners, case of the complainant needs to be taken notice of.
According to the case of the complainant, he entered into an agreement with the petitioners for purchasing a flat bearing no.102 of "Anand Apartment" which was under construction. The complainant agreed to purchase the said flat for a total consideration amount of Rs.6,22,400/- and out of that, a sum of Rs.1,00,000/- was paid through cheque on 6.4.2007. On payment of the said amount, an allotment letter was issued to the complainant on 27.10.2010. Thereupon the complainant insisted on to execute an agreement for sale but the accused persons avoided on one pretext or the other.
Further case is that instead of executing an agreement of sale, the accused persons allotted the said flat no.102 to one Sanjeev Kumar. Subsequently, the complainant came to know that the accused persons who had entered into a development agreement with the owner of the land has been litigating a case relating to Ceiling Act and over that piece of land, even Vigilance enquiry was going on. In spite of the petitioners entered into an agreement with the complainant for selling the flat.
On such allegation, a complaint was lodged which was registered as Complaint Case no.2201 of 2008 under Sections 406, 420, 467, 468, 471, 120B of the Indian Penal Code. However, the court took cognizance of the offence punishable under Section 418 of the Indian Penal Code, vide order dated 27.7.2009 which is under challenge.
Mr.Mukesh Kumar Sinha, learned counsel appearing for the petitioners submits that the allegations which have been made against the petitioners are that the petitioners in spite of entering into an agreement for selling a flat, did not give possession of the flat to the complainant. Assuming this allegation to be true, no offence can be said to have been committed by the petitioners of cheating as the petitioners never made any misrepresentation to the complainant and thereby the question of committing offence under Section 418 of the Indian Penal Code does not arise.
That apart, it was also submitted that whatever allegations have been levelled, that gets falsified from the admitted document,i.e notice issued to the complainant which would reveal that when he failed to make payment of rest of the booking amount, allotment of the flat in question was cancelled, vide letter dated 28.3.2008 as annexed as Annexure 7.
Under the circumstances, the case never happens to be a case of cheating, rather it becomes a case of civil dispute.
As against this, Mr.Rakesh Kumar Sinha, learned counsel appearing for the opposite party no.2 submitted that the petitioners have been denying genuinity of the allotment letter which cannot be allowed to be taken for the purpose of quashing of the criminal proceeding and hence, the prayer made in the application never warrants to be allowed.
Having heard learned counsel appearing for the parties, it does appear that it is the case of the complainant that in spite of entering into an agreement as well as letter of allotment being issued to the complainant, the petitioners neither executed deed of agreement nor possession of the flat was given.
In such situation, it is to be considered as to whether the petitioners have committed any offence of cheating or not ?
The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows:
"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 persons 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 its reading it appears that following ingredients should necessarily be there for constituting offence of cheating.
(1) there should be fraudulent or dishonest inducement of a person by deceiving him (2) (a) the person so deceived should be induced to deliver any property to any persons, 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.
(3) in cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property.
Thus, the first element necessary for constituting the offence of cheating is a deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. After deception has been practiced the persons deceived should get induced to do or omit to do something.
In the instant case there does not seems to be any allegation regarding deception being practiced upon the complainant. In such event, no case of cheating is made out.
In this respect, I may refer to a case of Iridium India Telecom Limited vs. Motorola Incorporated and others [(2011) 1 SCC 74] wherein the Hon'ble Supreme Court has been pleased to hold that deception is a necessary ingredient for the offence of cheating under both parts of the Section.
Since I have already stated that the element of deception is being not there, question of commission of offence of cheating does not arise.
Accordingly, the entire criminal proceeding of Complaint Case No.2201 of 2008 including the order dated 27.7.2009 taking cognizance is hereby quashed.
In the result, this application is allowed.
(R.R.Prasad, J.) ND/