Jharkhand High Court
Kishore Kumar Gupta @ Kishori Prasad ... vs State Of Jharkhand & Anr on 20 March, 2012
Equivalent citations: 2012 (2) AIR JHAR R 856
Author: R.R.Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr. M. P. No.191 of 2011
Kishore Kumar Gupta @ Kishori Prasad Gupta and
another...Petitioners
VERSUS
State of Jharkhand and another.....................................Opposite
Parties
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners: M/s. Sanjay Prasad and Kamdeo Pandey
For the State :A.P.P
For the Opp.Party no.2: Mr.P.C.Sinha
Reserved on 23.1.2012 Delivered on 20.3.2012
10/ 20.3.12. This application is directed against the order dated 27.11.2010 passed by the learned Sessions Judge-cum-F.T.C.II, Giridih in Cr. Rev. No.142 of 2006 whereby and whereunder learned Judge having set aside the order dated 1.8.2006 passed in Complaint Case no.354 of 2006 took cognizance of the offences punishable under Sections 420 and 406 of the Indian Penal Code against the petitioners.
Before adverting to the submissions advanced on behalf of the parties, case of the compliant is to be taken notice of.
The father of the complainant was tenant on a portion of a house having holding no.539 (part) situated at ward no.1, Giridih Municipality. The petitioners being the owner of the house conveyed to the complainant-opposite party no.2 that they are intending to sell the house for a consideration of Rs.14,11,000/-. The complainant agreed to purchase it and hence, a sum of Rs.2,00,000/- was paid as an advance. Thereupon, an agreement of sale was executed which got registered on 6.9.2005. On 18.10.2005 further sum of Rs.6,00,000/- was paid through Bank draft. Thereupon it was conveyed to the complainant that they will be vacating the house in question and will be giving vacant possession of it but instead of giving vacant possession, a legal notice was given wherein it was stated that they 2 are not interested in selling the property and that they are ready to refund the money.
On this allegation, a complaint was lodged, vide Complaint Case No.354 of 2006 alleging therein that the petitioners by not executing the sale deed and by not returning the money have committed offence of cheating and misappropriation. Upon enquiry, it was held by the learned Judicial Magistrate that no criminal offence is made out, rather the case is of civil liability and hence, it was dismissed under Section 203 of the Code of Criminal Procedure.
Being aggrieved with that order, the complainant preferred Cr. Rev. No.142 of 2006 which was allowed by holding that the accused persons had taken advance for selling the property but instead of selling it, they revoked the agreement and as such, sufficient material is there to show that the accused persons committed offence under Sections 406 and 420 of the Indian Penal Code. That order is under challenge.
Learned counsel appearing for the petitioners submits that the petitioners at best can be said to have violated the terms and conditions of the agreement whereunder the petitioners were supposed to execute sale deed and to give possession of the house in question. In the circumstances, question of committing offence of cheating or misappropriation never arises.
As against this, learned counsel appearing for the complainant- opposite party no.2 submits that when the petitioners gave proposal for selling the property, the complainant agreed to purchase it and thereby an agreement of sale was executed which was registered and that towards consideration, a sum of Rs.2,00,000/- had already been given in advance and subsequent to execution of the agreement of sale, a further sum of Rs.6,00,000/- was given. In spite of that, neither the sale deed was executed nor possession of the house was given nor 3 money was returned and thereby the petitioners can certainly be said to have committed offence of cheating.
In the context of the submission advanced on behalf of the parties, it is to be considered as to whether the allegations made in the complaint does constitute offence of cheating and misappropriation 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. Then, the question arises as to what is the deception ?
In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or 4 inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the principle constituting a criminal offence of cheating in context of the allegation it does appear that first element of deception constituting an offence of cheating is lacking as nowhere the allegations made in the complaint do indicate about the complainant being deceived by the petitioners in any manner.
At this stage, it would be appropriate to refer a case of Iridium India Telecom Limited vs. Motorola Incorporated and others [(2011) 1 SCC 74] whereby the Hon'ble Supreme Court taking notice of Section 415 of the Indian Penal Code has been pleased to hold that deception is a necessary ingredient for the offence of cheating under both parts of the Section.
It has been further observed that there is a growing tendency in business circle to convert purely civil dispute into criminal cases. This is obviously on account of the prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. Such tendency is seen in several family dispute also leading to irretrievable brake down of marriages/families . There is also an impression that if a person could somehow be entangled into a criminal prosecution, there is likelihood in imminent settlement. It has emphatically been said by the Hon'ble Supreme Court in the said decision that any effort to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged.
As I have already observed that necessary ingredients are lacking constituting offence of cheating, it be recorded that no offence of cheating is made out even if the entire allegations made in the complaint are taken to be true.
5
So far as the offence under Section 406 of the Indian Penal Code is concerned, that also does not appear to have been made out against the petitioner. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under:
"405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code.
(a) a person should have been entrusted with property or entrusted with dominion over property;
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so;
(c ) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust."
In the background of the allegation made in the complaint, I do not find it a case of criminal breach of trust, rather it is a pure case of breach of agreement which could have been enforced in the competent court of civil jurisdiction.
Under the circumstances as aforesaid, learned revisional court seems to have committed illegality in taking cognizance of the offence as aforesaid. Hence, the order 27.11.2010 is hereby set aside.
In the result, this application is allowed.
( R.R.Prasad, J.) ND/