Bombay High Court
Dr. Mohan S/O Krishnarao Khedkar vs The State Of Maharashtra, Through P.S. ... on 2 December, 2020
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 362 OF 2014
Dr. Mohan S/o. Krishnarao Khedkar,
Aged about 54 years, Occ. Service,
R/o. Kulguru Niwas, Sant Gadgebaba Amravati
University, Amravati, Tah. & Dist. Amravati. . . . APPLICANT
...V E R S U S..
1. The State of Maharashtra through
P.S. Frezarpura, Amravati,
Tah. & Dist. Amravati.
2. Dr. Rajendra Prasad,
Aged about 43 years,
Occ. Private Service/Job
R/o. 22, Green Park Colony,
Near Shankar Nagar, Amravati,
Tah. & Dist. Amravati. . NON-APPLICANTS
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Shri J. B. Kasat, Advocate for applicant.
Ms. K. S. Joshi, A.P.P. for non-applicant no. 1/State.
Shri P. R. Agrawal, Advocate for non-applicant no. 2.
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CORAM :- Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED :- 02.12.2020
JUDGMENT (PER : AMIT B. BORKAR, J.) :-
1. This is an application under Section 482 of Code of Criminal Procedure challenging the order dated 16.05.2014 passed by the Judicial Magistrate First Class, Court No. 9, Amravati in O.M.C. No. 226/2014 and First Information Report No. 135/2014, dated ::: Uploaded on - 05/01/2021 ::: Downloaded on - 09/02/2021 13:43:39 ::: 2 crapl-362-14 j.odt 21.05.2014 registered by the non-applicant No. 1- Police Station for offences under Sections 418, 420 read with Section 34 of the Indian Penal Code (IPC).
2. First Information Report No. 135/2014 came to be registered against the applicant in pursuance of the order passed by the Judicial Magistrate First Class, Court No. 9, Amravati dated 16.5.2014, wherein it is alleged that the applicant has cheated Sant Gadge Baba Amravati University, Amravati by causing wrongful loss to the University by claiming an amount of Rs. 75,000/- towards transfer allowance, which the applicant was not entitled to.
3. The applicant has challenged the First Information Report by filing the present application and this Court on 29.09.2014 admitted the present application and continued ad-interim relief already granted by this Court on 27.05.2014.
4. Non-applicant No.1 filed reply submitting that the applicant was not entitled to transfer allowance of Rs. 75,000/-, but still the said amount was paid to the applicant. It is stated that as per Section 12 of the Maharashtra Universities Act 1994, the applicant was not entitled to receive transfer allowance of Rs. 75,000/-. Therefore, non-applicant No. 1 prayed for rejection of the present Criminal Application. ::: Uploaded on - 05/01/2021 ::: Downloaded on - 09/02/2021 13:43:39 :::
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5. Non applicant No. 2 also filed his reply by submitting that the applicant has falsely claimed travel allowance, which the applicant was not entitled to as per law. Therefore, the applicant has cheated the concerned University. It is further stated that from the averments in First Information Report, contents of offences alleged against the applicant are fulfilled and therefore, the Criminal Application deserves to be rejected.
6. We have heard Shri J. B. Kasat, learned Advocate for the applicant, Ms. K. S. Joshi, learned A.P.P. for non-applicant No. 1 and Shri P. R. Agrawal, learned Advocate for non-applicant No. 2.
7. We have carefully considered the averments in First Information Report and replies filed by both the non-applicants. The main allegation against the applicant in the First Information Report is that the applicant has cheated the University by falsely claiming travel allowance, which the applicant was not entitled to in the eyes of law.
8. Section 418 of the IPC deals with cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and Section 420 of the IPC is cheating and dishonestly inducing delivery of property. In order to attract the provisions of Sections 418 and 420 of the IPC, the guilty intent at the ::: Uploaded on - 05/01/2021 ::: Downloaded on - 09/02/2021 13:43:39 ::: 4 crapl-362-14 j.odt time of making the promise is a requirement as an essential ingredient thereto. Subsequent failure to fulfill the promise by itself would not attract the provisions of Section 418 or Section 420 of the IPC. Mens-rea is one of the essential ingredients of the offence of cheating under Section 420 of the IPC. To constitute an offence under Section 420 of the IPC, there should not only be cheating but, as a consequence of such cheating, the accused should have dishonestly induced the person deceived to deliver any property to any person or to make, alter or destroy only or in part a valuable security or anything signed or sealed and which is capable of being converted into valuable security.
9. Judged on the touchstone of the principles noted above, the present case, in our considered view, warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 of the IPC and its allied offences under Section 418 of the IPC has not been made out. As the ingredients of cheating, as stated in Sections 418 and 420 of the IPC are not found, it cannot be said that there is an offence under Section 418 and 420 of IPC. The allegation against the applicant is to the effect that he has claimed travel allowance, which he was not entitled to in the eyes of law. There is no allegation against the applicant that he had dishonestly or fraudulently induced University to part with travel allowance. The record shows ::: Uploaded on - 05/01/2021 ::: Downloaded on - 09/02/2021 13:43:39 ::: 5 crapl-362-14 j.odt that the applicant has immediately repaid amount of Rs. 75,000/- paid to him as travel allowance. Hence, we are satisfied that continuance of proceedings against the applicant would amount to abuse of process of law. Therefore, the First Information Report filed against the applicant deserves to be quashed and set aside.
10. We therefore, pass the following order:-
(i) Criminal Application No. 362/2014 is allowed.
(ii) The order dated 16.05.2014 passed by Judicial Magistrate First Class, Court No. 9, Amravati in O.M.C. No. 226/2014 is quashed and set aside.
(iii) First Information Report No. 135/2014, dated 21.05.2014 registered with non-applicant No. 1- Police Station for offences under Sections 418, 420 read with Section 34 of the Indian Penal Code is quashed and set aside.
The Criminal Application is allowed in the above terms.
JUDGE JUDGE
RR Jaiswal
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