Allahabad High Court
Mohammad Salim Qureshi vs State Of U.P. And Another on 20 November, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 11602 of 2005 Applicant :- Mohammad Salim Qureshi Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.A.N. Shah Counsel for Opposite Party :- Govt. Advocate,Preet Pal Singh Rathore Hon'ble Sudhir Agarwal,J.
1. Heard Sri S. A. N. Shah, learned counsel for the applicant and learned A. G. A. for the State of U.P.
2. This application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") has been filed praying for quashing charge sheet submitted against applicant under Sections 419, 420, 468, 471, 120-B IPC as well as entire proceedings of Case No.538 of 2003 arising out of Case Crime No.247 of 2000 pending in the Court of Civil Judge, Junior Division, Judicial Magistrate, Kasganj, District-Etah.
3. It is contended that though cheque in question was deposited in applicant's account but subsequently applicant has returned the amount and thereafter FIR was lodged and proceedings have been initiated against applicant, hence, no offences under Sections 419, 420, 468, 471, 120-B IPC is made out.
4. Case set up by Informant as per FIR version reads as under :
^^lsok esa Jheku izeq[k x`g lfpo egksn; m0iz0 'kklu y[kuÅ Jheku~ th fuosnu ;g gS fd izkFkhZ dLck lgkoj Fkkuk lgkoj esa eksgYyk dqjsf'k;ku dk fuoklh gS izkFkhZ 1998 esa gt djus ds fy, lgkoj ls eDdk 'kjhQ x;k Fkk esjs lkFk Jherh duhtk QkRek iRuh ds HkkbZ lkgc mQZ vCnqy gqlSu fuoklh eksgYyk dqjsf'k;ku dLck lgkoj Hkh x;h Fkh ge yksxksa us gt desVh dks eDdk ljhQ esa jgus ds bUrtke ds flyflyk esa :i;k tek Hkh fd;k FkkA eDdk ljhQ esa ge yksxksa dks tks fj;k;r ekaxh x;h Fkh mldk ogka izcU/k ugha gks ldk vkSj Vw&Vw de fdjk;s dh fj;klr dk bUrtke gqvk bldh otg ls gt desVh cEcbZ dks ge yksxksa dks eq0 5475@& :i;k okil djuk FkkA tks mUgksaus tfj;s esa vkMZj ua0 057091 fnukad 8&5&99 ch0,e0lh0 cSad cEcbZ }kjk okLrs eq0 5475@& :i;k ctfj;s jftLV~jh Mkd esjs irs ls lgkoj Hkst fn;k exj ;g psd eq>s izkIr ugha gqvk rc eSaus gt desVh y[kuÅ m0iz0 o cEcbZ dks f'kdk;r Hksth esjh f'kdk;r ij gt desVh cEcbZ us ,d i= fnukad 8&1&2000 dks eq>s Hkstk ftlds tfj;s eq>s crk;k x;k fd gt desVh cEcbZ dks ch0,e0lh0 cSad us lwfpr fd;k fd mDr jde dk psd LVsV cSad vkQ bf.M;k 'kk[kk lgkoj dks 19&6&99 dks Hkst fn;k x;k gSA bl i= ds ckn izkFkhZ us dbZ ckj LVsV cSad vkQ bf.M;k dh lgkoj 'kk[kk ds izcU/kd Jh oh0 ds0 egjks=k ls lEidZ fd;k exj mijksDr izcU/kd us izkFkhZ dks dksbZ tkudkjh ugha nh rc izkFkhZ us ,d irs fnukad 21&8&2000 dks ctfj;s jftLVjh Mkd LVsV cSad vkQ bf.M;k lgkoj dks fy[kk fd eq>s fyf[kr lwpuk iznku dh tk;s fd mDr /kujkf'k dk Hkqxrku vc vkSj fdl O;fDr dks dj fn;k x;k gSA bl i= ds mRrj esa fnukad 25&8&2000 dks Hkkjrh; LVsV cSad 'kk[kk lgkoj us eq>s lwfpr fd;k fd mijksDr psd ua0 057091 fnukafdr 8&5&99 xzkgd }kjk izLrqr fd;s tkus ij mDr /kujkf'k dks muds [kkrs esa tek dj fn;k x;k gSA izkFkhZ us u rks oh0,e0lh0 cSad cEcbZ }kjk Hkstk x;k mijksDr psd izkIr fd;k vkSj u mudks Hkqxrku ds fy, ml psd dh LVsV cSad lgkoj 'kk[kk dks tek fd;k izkFkhZ us blds ckn vkSj tkudkjh rks ekywe gqvk fd ml psd dk Hkqxrku eksgEen lyhe dqjslh oYn vCnqy vtht fuoklh eks0 dwjsf'k;ku lgkoj us izkIr djds vius [kkrk esa tek dj fy;k gSA bl izdkj Hkkjrh; LVsV cSad 'kk[kk lgkoj ds izcU/kd Jh oh0 ds0 eygks=k o eks0 lyhe dqjS'kh ls lkt djds izkFkhZ ds psd ua0 051091 eq0 5475@& :i;k pksjh djds o ih0Vh0vks0 eksgEen lyke psd dks /kks[kk nsdj izkFkhZ dh mijksDr jde cnfu;rh ls gte dj yh gSA izkFkhZ bl ekeys dh fjiksVZ fy[kkus iqfyl Fkkuk lgkoj x;k rks Fkkuk/;{k Fkkuk lgkoj us izkFkhZ dh fjiksVZ fy[kus ls lkQ bUdkj dj fn;k rc izkFkhZ us ,d izkFkZuk i= fnukad 4&9&2000 dks o dbZ vU; izkFkZuk i= Jheku ofj"B iqfyl v/kh{kd egksn; ,Vk rFkk ftys ds vU; iqfyl vf/kdkfj;ksa dks fn;s ysfdu Fkkuk/;{k Fkkuk lgkoj us vkt rd izkFkhZ dh fjiksVZ ugha fy[kh blfy, izkFkhZ ;g izkFkZuk i= tkekurh dk ns jgk gS vr% Jheku th ls izkFkZuk gS fd ofj"B iqfyl v/kh{kd egksn; ,Vk dks funsZf'kr djsa fd og Fkkuk lgkoj ls izkFkhZ dh fjiksVZ ntZ djkdj nks"kh O;fDr ds fo:) dkuwuh dk;Zokgh djk;s tkus dh d`ik djsa bl ?kVuk ls lEcfU/kr lHkh dkxtkr tks izkFkhZ dh ikl gSA dh Nk;k izfr;ka layXu gSA izkFkhZ eq0 lyke ,l0Mh0 eksgEen lyke oYn Jh vCnqy lyke fuoklh eks0 dqjsf'k;ku lgkoj Fkkuk lgkoj ftyk ,Vk m0iz0 fnukad lkans'k Jheu {ks=kf/kdkjh dklxat la[;k ,l0Vh0lh0vks0 ds&697@2000 fnukad 14-12-2000 ,l0Mh0 jkts'k dqekj flag jkts'k dqekj flag iqfyl mik/kh{kd dklxat ,Vk vkns'k ,l0vks0 lgkoj ,p0,e0 vkns'k dk ikyu djsaA ,l0Mh0 josUnz flag egjks=k 16&12&2000** "To The Principal Secretary, Home, Government of Uttar Pradesh. Sir, it is submitted that the applicant is a resident of Mohalla Kureshiyan, Kasba Sahawar, PS Sahawar. In 1998, the applicant had gone from Sahawar to Makka Sharif for Haj. My wife Smt Kaniza Fatma and her brother Saheb alias Abdul Hussain resident of Mohalla Kureshiyan, Kasba Sahawar had also gone with me. We had deposited money with Haj Committee in respect of stay arrangements at Makka Sharif. The arrangement requested by us in Makka Sharif could not be made there and stay arrangements below the rent paid were made; that's why a sum of Rs 5475/- had to be returned to us by the Haj Committee, Mumbai. The same was sent to my address at Sahawar by way of order no 057091 dated 8.5.99 issued by the BMC Bank, Mumbai through registered post but the it was not delivered to me. On this I submitted its complaint to the Haj Committee, Lucknow, UP and Mumbai, acting upon which the Haj Committee, Mumbai sent a letter on 8.1.2000 whereby it was stated that the Haj Committee had been informed by the BMC Bank that cheque of the aforesaid amount has on 19.6.99 been sent to the State Bank of India, Branch Sahawar. After this letter, applicant repeatedly contacted the manager of Branch Sahawar Sri V.K.Mehrotra but no information was given to the applicant by the aforesaid manager. Then, applicant on 21.8.2000 wrote a letter to the State Bank of India, Sahawar through registered post that the written information may be provided to him as to when and to whom the aforesaid amount has been paid. In reply to this letter, the State Bank, Branch Sahawar on 25.8.2000 informed me that the aforesaid cheque no 057091 dated 8.5.99 on being presented by the customer, aforesaid amount has been deposited in his account. The applicant neither received the cheque sent by BMC Bank, Mumbai nor deposited the said cheque at Sahawar branch of State Bank for encashment. Thereafter, when the applicant further enquired, he came to know that Mohammad Saleem Qureshi, s/o Abdul Aziz, r/o Mohalla Qureshian, Sahawar has received the said cheque and got the same encashed into his account. In this way, Shri V.K. Malhotra, Manager, State Bank of India, Sahawar branch and Mohammad Saleem Qureshi have colluded together and stolen applicant's cheque no. 051091 amounting to Rs. 5,475/- and have deceived PTO Mohammad Salam, thereby grabbing the aforesaid amount of his with malafides. The applicant went to PS Sahawar to register a complaint of the case there, where the SHO, Sahawar flatly refused to lodge the complaint of the applicant. On this, the applicant sent one application dated 04.09.2000 and several other applications to the Senior Superintendent of Police, Etah and other police officers of the district but the SHO, Sahawar has not yet lodged the complaint of the applicant. Hence, the applicant is submitting the application. Your good-self is, therefore, requested to direct the Senior Superintendent of Police to get the complaint of the applicant registered at PS Sahawar and to ensure legal action against the culprit. Photocopies of all the papers related to this incident the complainant is possessing are enclosed. Applicant Mohammad Salam, Sd/- Mohammad Salam, s/o Shri Abdul Salam, r/o Mohalla Qureshian, PS Sahawar, Sahawar, Etah, Uttar Pradesh sent a letter to The Circle Officer, Kasganj No. STCO K-697/2000, dated 14.12.2000, S.D. Rajesh Kumar Singh, Rajesh Kumar Singh, Deputy Superintendent of Police, Kasganj, Etah, Order - S.O. Sahawar HM Etah to comply with the order. S.D. Ravendra Singh Mehrotra 16.12.2000."
5. Learned counsel for applicant could not show in whose name cheque was issued and how it was deposited by applicant's son himself in applicant's account.
6. In case, when a dispute of civil nature has arisen in a case and there are sufficient ingredients of criminality also, the mere fact that it involves civil dispute also does not mean that criminality is excluded.
7. Section 420 is "cheating" which is defined in Section 415 and both these provisions read as under:
"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".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
"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."
8. In order to attract allegations of "cheating", following things must exist:
(i) deception of a person;
(ii) (A) fraudulent or dishonest inducement of that person,
(a) to deliver any property to any person; or,
(b) to consent that any person shall retain any property, (B) intentional inducing that person to do or omit to do any thing,
(a) which he would not do or omit if he was not so deceived, and,
(b) such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. (Emphasis added)
9. Then in order to attract Section 420 I.P.C., essential ingredients are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
10. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
11. In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
12. In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
13. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, 2000(4) SCC 168 Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth 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, inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to 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. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
14. In S.W. Palanitkar and others Vs. State of Bihar and another, 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
15. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
"Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person 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, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth 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."
(Emphasis added)
16. In Devender Kumar Singla Vs. Baldev Krishan Singh 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
17. In Indian Oil Corporation Vs. NEPC India Ltd., 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
18. Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
19. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
20. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
21. In view of discussions made hereinabove and considering the allegations contained in the complaint as well as in the case in hand and in the light of above authorities, proceedings are not liable to be quashed.
22. Application is accordingly dismissed.
Order Date : 20.11.2019 Manish Himwan