Allahabad High Court
Surendra Kumar Katyal vs State Of U.P. And Another on 4 September, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:143355 Court No. - 74 Case :- APPLICATION U/S 482 No. - 21976 of 2024 Applicant :- Surendra Kumar Katyal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sushil Kumar Tewari Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Sushil Kumar Tewari, learned counsel for applicant and Sri Rakesh Kumar Mishra, learned A.G.A. for State.
2. Sri Sushil Kumar Tiwari, learned counsel for applicant on basis of material available along with this application submits that in pursuance of an oral agreement between applicant and complainant in regard to sale of property of complainant, Rs.15 lakh was handed over by applicant to complainant with a condition to execute the agreement to sale and in lieu of it, some cheques were handed over to the applicant that in case agreement could not be executed, cheques be deposited in the bank account of applicant.
3. Learned counsel further submits that due to default of complainant, execution of oral agreement could not satisfied and, therefore, applicant has deposited cheques issued by complainant in the bank, which got dishonoured and for that he has filed a criminal case under Section 138 of N.I. Act in the year 2016, wherein by an order dated 29.04.2017, complainant was summoned.
4. Learned counsel further submits that after a period of five years, complainant in order to create a defence, filed a complaint case against applicant, alleging that she lost her cheques in 2016 which was found by applicant and he misused it with a further allegation that on 11.05.2023, applicant has extended threats and demanded Rs.50 lakh to avoid further litigation.
5. Learned counsel further submits that statement of complainant was recorded under Section 200 Cr.P.C. which is reproduced hereinafter :-
"???? ??????? ???? 200 ??.??.??.??.
?????????? ????? ?????????, ???? 50 ???? , ?????? ??????? ??? ??? ?????? ???? ????? ?????? ?? ???? ??? ???? ???-
2016 ??? ???? ??? ??? ?? Passbook ?? ??? ?? ?? ???? ?? ??? ???? ?? ???? ??? ?? ???? ????? ???? ???? ???? ??????? ?????? ????? ???? ???? ??? ???? ???? ????? 11.05.2023 ?? Court ??? ???? ??? ????? 2.30 ??? ?????? ??? ?????? ?? ??? ?? ????? ???? ???? ???? ?? ????? ????? ???? ???? ???? ???? ?? ?????? ?? ??????? ???? ?? ?? 50 Lakh ??? ???? ?? ?? ?????? ???? ??? ???????? ?? ?? Cheques ?? ??? ?????? ????? ??????? ???? ???? ??? ???? ???? ??? ???? ???? ???? ??? ?????? ? ?????"
6. Learned counsel further submits that aforesaid referred statement is nothing but an attempt to create a defence. Even on basis of above referred statement, offence of extortion could not be made out since there is no allegation that Rs.50 lakh was handed over to applicant as well as learned Trial Court has summoned the applicant under Section 420 I.P.C. also without considering that allegation of cheating is not made out.
7. Learned counsel also submits that complainant has not disclosed about the criminal case filed by applicant under N.I. Act way back in the year 2017 that cheques so deposited by him were bounced.
8. In order to appreciate above referred arguments of learned counsel for applicant, I have also carefully perused the impugned order which is reproduced hereinafter :-
"?????? 24/07/2023 ???????? ??? ???? ???????? ??? ???? ???? ???? ?? ????? ?? ????? ?? ??????? ???????? ??????? ???? ??????? ?? ??????? ???????? ?? ???? ??? ?? ?????? ?? ???? ????
???? ??? ???????? ?? ?????? ?????
???????? ?????????? ??????? ?????? ??????? ????????? ????? ??????????? ?????? ?????? ?????? ??????? ????? ??? ????? ???? ????? ??????, ???? ????????? ?? ??????? ??????? ???????? ?? ??? ?? ??? ?? ???????? ???? ?? ?? ??????? ?????? ????? ????? ???? ??? ??, ?????? ??? ?? ?????? ???? ?????
??????? ?????? ????? ?? ????-200 ?????????? ?? ??????? ?? ???? ???? ??? ?? ?? 2016 ??? ???? ?????? ?? ?????? ?? ??? ?? ?? ???? ?? ?? ???? ?? ???? ???? ???? ????? ???? ???? ???? ??????? ?????? ????? 1/05/2023 ?? ????? ??? ???? ??? ????? 2.30 ??? ?????? ??? ?????? ?? ??? ??? ??? ???? ?? ????? ????? ????? ??? ???? ?? ?????? ?? ??????? ???? ?? 50 ??? ????? ???? ?? ??? ?????? ???? ??? ???????? ?? ?? ??? ?? ?????? ??? ?????? ????? ??????? ???? ??? ??? ???? ???? ????-202 ?????????? ?? ??????? ????????-1 ????????? ????? ??????? ? ????????- 2 ?????? ??? ????? ?????? ?? ???????? ????? ??? ?? ????????? ???? ???? ??????? ???? 200 ?????????? ??? ??????? ?? ????? ?? ?????? ???? ???
???????? ?? ?????? ????? ????????? ?? ???? ?? ?????????? ??? ???????? ??????? ?????? ??????? ?? ???? ?????? ? ?????? ?? ???? ? ????????? ????? ?????? ???? ???? ???? ?????? ?????? ?? ?????? ???? ??? ??????? ???? ?? ???? ??????? ?? ????? ????? ??????? ????? ???? ???? ?????? ???? ??? ???? ???????? ?????? ???? ??? ???? ???? ????? ???
????
????????/??????? ????????? ????? ?????? ????? ?????? ?????? ?????? ??????? ????? ??? ????? ???? ????? ??????, ???? ????????? ?? ??????? ??????? ???? 420, 384 ?????????? ?? ?????????? ???? ???? ??? ???????? ????? ????? ??? ??? ??????? ????? ????? ??????? ????? ???? ?????? ?????
??????? ???? ???????? ???????? ???? ?? ?????? ?? ??????? ?????? ?? ????? ???????? ???????? ???????? ??????- 28.07.2023 ?? ??? ???"
9. In the aforesaid circumstances, I find merit in the argument of learned counsel for applicant that on basis of statement, since offence of extortion was not concluded that admittedly alleged demand of Rs.50 lakh was not handed over, therefore, extortion was not be made out.
10. The Court further finds merit in argument of counsel for applicant that it is not possible that complainant has no knowledge that cheques were already dishonoured since the occurrence of dishonoured took place about five years ago as well as that she was already summoned under Section 138 of N.I. Act way back in the year 2017. The cheques were dishonoured due to insufficient amount and not for disputed signatures, therefore, the allegation of cheating is also not made out and for that the Court takes note of a judgment passed by Supreme Court in Dhananjay @ Dhandnjay Kumar Singh Vs. State of Bihar and others, (2007)14 SCC 768 and Prof. R.K. Vijayasarathy and another Vs. Sudha Seetharam and another, (2019) 16 SCC 739, and for reference, relevant paragraphs thereof are reproduced hereinafter :-
"Dhananjay @ Dhandnjay Kumar Singh
5.Section 384 provides for punishment for extortion. What would be an extortion is provided under Section 383 of the Penal Code in the following terms:
"383.Extortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits ''extortion'."
6.A bare perusal of the aforementioned provision would demonstrate that the following ingredients would constitute the offence:
1. The accused must put any person in fear of injury to that person or any other person.
2. The putting of a person in such fear must be intentional.
3. The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security.
4. Such inducement must be done dishonestly.
7. A First Information Report as is well known, must be read in its entirety. It is not in dispute that the parties entered into transactions relating to supply of bags. The fact that some amount was due to the appellant from the First Informant, is not in dispute. The First Information Report itself disclosed that accounts were settled a year prior to the date of incident and the appellant owed a sum of about Rs.400-500 from (sic) Gautam Dubey (sic).
8. According to the said Gautam Dubey, however, a sum of Rs.1500/- only was due to him.
9. It is in the aforementioned premise the allegations that Gautam Dubey and the appellant slapped the first informant and took out Rs.1580/- from his upper pocket must be viewed.
10. No allegation was made that the money was paid by the informant having been put in fear of injury or putting him in such fear by the appellant was intentional.
11. The first informant, admittedly, has also not delivered any property or valuable security to the appellant.
12. A distinction between theft and extortion is well known. Whereas offence of extortion is carried out by overpowering the will of the owner; in commission of an offence of theft the offender's intention is always to take without that person's consent.
13. We, therefore, are of the opinion that having regard to the facts and circumstances of the case, no case under Section 384 of the Penal Code was made out in the first information report.
Prof. R.K. Vijayasarathy and another "15. Section 415 of the Penal Code reads thus:
"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"."
16. The ingredients to constitute an offence of cheating are as follows:
16.1. There should be fraudulent or dishonest inducement of a person by deceiving him:
16.1.1. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or 16.1.2. The person so 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; and 16.2. In cases covered by 16.1.2. above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
18. Section 420 of the Penal Code reads thus:
"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."
19. The ingredients to constitute an offence under Section 420 are as follows:
19.1. A person must commit the offence of cheating under Section 415; and 19.2. 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.
20. Cheating is an essential ingredient for an act to constitute an offence under Section 420."
12. A similar view has been taken by this Court in the cases of Archana Rana v. State of Uttar Pradesh, Deepak Gaba v. State of Uttar Pradesh and Mariam Fasihuddin v. State by Adugodi Police Station.
13. It could thus be seen that for attracting the provision of Section 420 of IPC, the FIR/complaint must show that the ingredients of Section 415 of IPC are made out and the person cheated must have been dishonestly induced to deliver the property to any person; or to make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. In other words, for attracting the provisions of Section 420 of IPC, it must be shown that the FIR/complaint discloses:
(i) the deception of any person;
(ii) fraudulently or dishonestly inducing that person to deliver any property to any person; and
(iii) dishonest intention of the accused at the time of making the inducement."
(Emphasis supplied)"
11. In the aforesaid circumstances, the Court also takes note that complainant has not come up with clean hands before learned Trial Court. The outcome of above discussion is that impugned order does not survive and accordingly the impugned order dated 24.07.2023 passed in Complaint Case No.23988 of 2023 (Chandrawati Vs. Surendra Kumar Katyal) under Sections 420, 384 I.P.C., Police Station- Nagphani, District- Moradabad pending n the Court of learned Additional Chief Judicial Magistrate, Court No.4, Moradabad is set side.
12. However, this order is passed without issuing notice to opposite party No.2, therefore, application is disposed of and the matter is remitted back to learned Trial Court to pass fresh order after hearing complainant only preferably within period of three months, after taking note of above observation.
13. Registrar (Compliance) to take steps.
Order Date :- 4.9.2024 P. Pandey