Delhi District Court
Yamin Khan vs The State on 11 April, 2019
IN THE COURT OF SHRI SANJEEV KUMARII,
ADDITIONAL SESSION JUDGE05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO. 204125/2016
IN THE MATTER OF:
Yamin Khan
S/o Late Sh. Siddique Khan
R/o TA32/2, Tuglakabad Extn.,
New Delhi110019 .....Revisionist.
VERSUS
1. The State
2. Jiauddin
S/o Sh. Darab Khan
R/o RZ531A/25, Tuglakabad Extn.,
New Delhi110019 .....Respondents.
Date of institution : 23.05.2015
Date of arguments : 25.03.2019
Date of order : 11.04.2019
JUDGMENT
This criminal revision has been filed by the revisionist accused under Section 397 of the Code of Criminal Procedure, 1973 (in short 'Code') against the order dated 07.07.2014 passed by the learned Metropolitan Magistrate04, South East District, Saket Courts, CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 1 of 16 New Delhi in the CC No.148/1/12 Police Station Govind Puri titled as "Mohd. Jiauddin v. Mohd. Yamin Khan" whereby the revisionist was summoned for the offence punishable under Section 420 of the Indian Penal Code, 1860 (in short 'IPC').
2. Mr. Mukesh Birla, learned counsel appearing for the revisionistaccused has submitted that respondentcomplainant was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (in short 'NI Act') in respect of cheques which are subject matter of the complaint filed by the respondent herein in which the impugned order has been passed and said complaint was filed in the year 2010 itself. Further, the revisionist herein had also filed a suit for specific performance of the agreement in the year 2010 against the respondent herein which was also decreed by learned Additional District Judge06, South East District, Saket Courts, New Delhi on 02.02.2019. The respondent herein had not disclosed before learned Metropolitan Magistrate about the pendency of the said complaint under Section 138 of the NI Act and the said civil suit. As the respondent herein had concealed the above said two cases in the complaint pending before learned Metropolitan Magistrate and therefore, he is not entitled to any relief. The said two cases were filed in the year 2010 by the revisionist against the respondent herein and the respondent herein had examined himself in the present complaint in the year of 2013 even in said statement he had not CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 2 of 16 disclosed about said two pending against him in respect of same subject matter and therefore, impugned order may be set aside.
3. On the other hand, Mr. Raj Kumar, learned counsel appearing for respondent no.2 has opposed the revision petition stating that the present complaint was filed by the respondent herein on 28.01.2011 and the said suit for specific performance was filed by revisionist herein that in November, 2010 and at the time of filing the present complaint, the respondent was not aware about the said suit and therefore, same was not found mentioned in the complaint filed before learned Metropolitan Magistrate. The respondent had given the cheques in question to the revisionist in blank and for the security purposes. The arguments of the respondent herein have not been dealt with properly in the civil suit for the specific performance which was decreed. In the present case, precharge evidence is to be recorded before learned Metropolitan Magistrate. The respondent had signed on the blank cheques. There are averments regarding inducement/deceiving in para no. 4 of the complaint filed before learned Metropolitan Magistrate. Intention can be gathered from the subsequent conduct also. The revisionist herein had misused the cheques in question which were given by the respondent herein in blank and for the purpose of security and same were misused by him. He was not counsel at the time of presummoning evidence before learned Metropolitan Magistrate.
CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 3 of 16
4. State/respondent no. 1 is the performa party because this revision has been filed against the impugned order passed in complaint case.
5. Respondent no. 2 herein has filed criminal complaint under Section 156 (3) and 200 of the Code against the revisionist herein for the offences punishable under Section 368, 371 and 420 IPC. In pre summoning evidence, respondent no. 2 herein examined himself as CW1, Irshad Ahmed as CW2 and Sabnam as CW3. After pre summoning evidence, learned Metropolitan Magistrate by impugned order summoned the accused (revisionist herein) for the offence under Section 420 IPC.
6. In the complaint filed before learned Metropolitan Magistrate, it is averred that on 09.05.2010, the son of the complainant met with an accident at Noida and received grievous injury and operated at the hospital. Accused came to the hospital when complainant son was admitted and told that if he need money take from him without any hesitation. On 11.05.2010, his son was discharged from the hospital but his medical treatment was continued in private hospital and by that time, the complainant had already spent Rupees about one and a half lac on medical treatment and expecting more in future. On 24.05.2010, accused again visited to complainant and told if he need money take from him. As the complainant had CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 4 of 16 already spent lot of money upon the medical treatment of his son then he asked the accused for a loan of Rs. 2 lacs then accused had taken signatures of the complainant on a blank stamp paper and two blank papers and had also taken six blank cheques bearing no. 765935 to 765940 duly signed and he gave Rs. 2 lacs to the complainant. The accused without his consent and knowledge forged the said blank papers to grave his property where complainant is residing alongwith his family. The complainant in the settlement meeting in front of so many persons paid Rs. 10,000/ to the accused and assured that balance of Rs. 1,90,000/ will be paid uptill 10.12.2010. The complainant received one legal notice dated 19.10.2010 and got astonished to see that accused had illegally forged the documents got signed by him and trying to grave his house RZ531A/25, Tughlakabad Extension, New Delhi which is four story. The accused himself forged the agreement dated 24.05.2010 and both the cheques number 765935 and 765940 with amount of Rs. 5 lacs each.
7. The offences mentioned in the complaint filed by respondent no.2 herein before learned Metropolitan Magistrate are forgery (Section 368 and 371 IPC) and cheating (Section 420 IPC) but revisionist herein was summoned only for the offence of cheating (Section 420 IPC) and therefore, this Court has to consider in the present revision as to whether there were sufficient ground to proceed further against the revisionist herein for the offence under Section 420 CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 5 of 16 IPC as summoned by learned Metropolitan Magistrate.
8. Allegations of the complainantrespondent no.2 in the complaint are that the son of the complainant met with an accident and a lot of money was spent by him and more money was required for the purpose of treatment. The accusedrevisionist visited in the hospital and told to the complainant to take money from him if he needs. Again on 24.05.2010, he visited to the complainant to take money if he needs and then complainant asked to accused for loan of Rs.2 lacs then accused had taken signatures on a blank stamp paper and two blank papers and had also taken six blank cheques duly signed and he gave Rs.2 lacs to the complainant. As per further case of complainant, he received a legal notice dated 19.10.2010, then he came to know that accused had illegally forged the documents got signed by him and trying to grave his house situated at Tughlakabad Extension. Accused had forged and concocted the story of purchasing of the said property of the complainant. Accused without any consent, knowledge and intimation to the complainant, filled two cheques out of the said six cheques. In his presummoning evidence, complainant has examined himself as CW1 and has reiterated the facts as mentioned in the complaint. Other two witnesses (CW2 and CW3) have also stated that Yamin Khan (revisionist herein) gave Rs.2 lacs to the complainant in cash and he got six cheques signed as security, one stamp paper and two other blank papers from the complainant and CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 6 of 16 there was no talk of selling the said house of the complainant.
9. In his presummoning evidence, the complainant (CW1) has deposed that he had taken the said loan amount from the accused Yamin Khan as his son made with an accident on 09.05.2010. The said accused came his house when his son returned from the hospital to see him when other people were also present at his house. He spent around Rs.1.5 lacs for medical treatment of his son. Accused asked him as to how much money was required by him. The accused gave him Rs.2 lacs in cash against which he got signed one blank stamp paper which was of Rs.50 denomination and got two blank papers also signed by him. As required by accused, he also handed over six blank cheques duly signed. The accused has without his consent and knowledge forged the abovesaid blank papers to grave his property. He had paid to the accused a sum of Rs.10,000/ in cash and sum of Rs.1,90,000/ remains to be paid.
10. Now question is as to whether from the facts and circumstances as mentioned in the complainant and in presummoning evidence, offence under Section 420 IPC is prima facie made out for the purpose of summoning the accusedrevisionist.
11. In Mohammed Ibrahim & Ors. v. State of Bihar & Anr, (2009) 8 SCC 751, Hon'ble Supreme Court observed that:
"Section 420 IPC CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 7 of 16
18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or likely to cause damage or harm to that person in body, mind, reputation or property.
19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived.
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 8 of 16 and which is capable of being converted into a valuable security).
20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.
21. It is not the case of complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were no so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 9 of 16 by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code."
12. In V. Ravi Kumar v. State, Rep. By Inspector of Police, District Crime Branch, Salem, Tamil Nadu & Ors., Criminal Appeal No.111 of 2011 decided on 14.12.2018, Hon'ble Supreme Court has observed in para no.34 that in Vesa Holdings (P) Ltd. and Anr. v. State of Kerala and Ors., (2015) 8 SCC 293, this Court found that there was nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat, which was a condition precedent for an offence under Section 420 IPC and the complaint was found not to disclose any criminal offence at all.
13. In Arun Bhandhar v. State of U.P. & Ors., Criminal Appeal No.78 of 2013 decided on 10.01.2013, Hon'ble Supreme Court observed in para no.14:
CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 10 of 16
"14. As advised at present we are inclined to discuss the decisions which have been commended to us by the learned senior counsel for the respondent. In Hridya Rajan Pd. Verma (supra) a complaint was filed that the accused persons therein had deliberately and intentionally diverted and induced the respondent society and the complainant by suppressing certain facts and giving false and concocted information and assurances to the complainant so as to make him believe that the deal was a fair one and free from troubles. The further allegation was that the accused person did so with the intention to acquire wrongful gain for themselves and to cause wrongful loss to the Society and the complainant and they had induced the complainant to enter into negotiation and get advance consideration money to them. The two Judge Bench referred to the judgment in State of Haryana v. Bhajan Lal wherein this Court has enumerated certain categories of cases by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 of the CrPC could be exercised either CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 11 of 16 to prevent abuse of the process of the court or otherwise to secure the ends of justice. The Bench also referred to the decisions in Rupen Deol Bajaj (Mrs.) v. Kanwar Pal Singh Gill, Rajesh Bajaj v. State NCT of Delhi and State of Kerala v. O.C. Kuttan wherein the principle laid down in Bhajan Lal (supra) was reiterated. The Court posed the question whether the case of the appellants therein came under any of the categories enumerated in Bhajan Lal (supra) and whether the allegations made in the FIR or the complaint if accepted in entirety did make out a case against the accusedappellants therein. For the aforesaid purpose advertence was made to offences alleged against the appellants, the ingredients of the offences and the averments maden the complaint. The Court took the view that main offence alleged to have been committed by the appellants is cheating punishable under Section 420 of the IPC. Scanning the definition of 'cheating' the Court opined that there are two separate classes of acts which the persons deceived may be induced to do. In the first place CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 12 of 16 he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts setforth 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. Thereafter, the Bench proceeded to state as follows: "16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of 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. To hold CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 13 of 16 a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.""
(emphasis supplied)
14. From the complaint and presummoning evidence, I do not find any allegation to show that accused tried to deceive complainant by making a false or misleading representation or by any other action or omission; that further I do not find allegations to show that accused offered complainant any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were no so deceived. Therefore, it cannot be said that the accused by the act of giving loan amount to the complainant and by the act of taking one blank stamp paper, two blank papers and six blank cheques signed from the complainant, deceived the complainant in any manner. As the ingredients of cheating as mentioned in Section 415 of the IPC are not found, it cannot be said that there was an offence punishable under Section 420 of the IPC.
CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 14 of 16
15. It is also pertinent to mention here that complainant (respondent herein) was convicted and sentenced for the offence punishable under Section 138 of the NI Act by judgment and order dated 05.06.2014 by the learned Metropolitan Magistrate in the complaint case which was filed by the revisionist (complainant therein) in respect of two cheques which have been stated in the present complaint by the respondent no.2 herein that same were misused by revisionist herein. It is also pertinent to mention here that suit of specific performance, perpetual and mandatory injunction filed by the revisionist herein against respondent no.2 herein has been decreed by learned Additional District Judge06, South District, Saket, New Delhi on 02.02.2019 holding that the defendant (respondent no.2 herein) had entered into the agreement to sell with the plaintiff (revisionist herein) vide agreement dated 24.05.2010 (wrongly written as 24.05.2018) and that the defendant had received a sum of Rs.9 lacs under the agreement; that there was no transaction of a loan of Rs.2 lacs between them as averred by the defendant. The facts regarding the judgment in complaint under Section 138 of the NI Act and the suit of specific performance etc have been admitted by the learned counsel for respondent no.2 herein.
16. In view of above discussion, I am of the view that no offence under Section 420 of the IPC is prima facie made out and therefore, learned Metropolitan Magistrate should not have issued CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 15 of 16 summons against the revisionist herein. Hence, impugned order is set aside and revision is allowed accordingly.
Announced in the open Court on 11.04.2019 (Sanjeev KumarII) Additional Session Judge05, South East, Saket Courts, New Delhi CR No. 204125/2016 Yamin Khan v. The State & Anr. Page No. 16 of 16