Gauhati High Court
Shri. Toshipokba Longkumer vs Shri. C. Among Jamir on 24 April, 2017
Author: S. Serto
Bench: S. Serto
Criminal Revision Petition No. 3(K) of 2013
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
KOHIMA BENCH
Criminal Revision Petition No.3 (K) of 2013
Shri. Toshipokba Longkumer,
Half Nagarjan, Dimapur
Under East Police Station, Dimapur, Nagaland.
.............Petitioner/Accused
-Versus-
Shri. C. Among Jamir
Half Nagarjan, Dimapur,
Under East Police Station, Dimapur, Nagaland
.............Respondent/Complainant
- BEFORE-
THE HON'BLE MR.JUSTICE S. SERTO
For the petitioner : Mr. Imti Longjem,
Mr. S.M. Ozukum, Advs.
For the respondent : Mr. Limawapang,
Mr. Y.P Gupta,
Mr. Philip, Advs.
Date of hearing : 27-03-2017
Date of Judgment : 24-04-2017
JUDGMENT & ORDER (CAV)
1. This is an application under section 482 of the Code of Criminal Procedure, 1973 praying for quashing the proceedings taken up against the petitioner in Complaint Case No. 04/2012, u/s 418, 420, 423 & 426 of IPC, before the Judicial Magistrate, 1st Class, Dimapur, Nagaland.
2. The brief facts leading to the filing of this petition are as follows;
That the petitioner/accused, businessmen by profession, in order to tie over his financial difficulties approach his bother-in-law i.e. the respondent/complainant to Page 1 of 13 Criminal Revision Petition No. 3(K) of 2013 borrow some money for him from money lenders by mortgaging his property as he himself did not have any property that can be mortgaged for the purpose. Consenting to the request, his brother-in-law, the respondent/complainant by mortgaging his land and house secured for him 3(three) loans from different persons. The names of the money lenders and the amount given by them on loan are as follows; (i) Mrs. Dolly K. Ezung - Rs. 17 lakhs, (ii) Mr. Hukavi Muru -Rs. 50 lakhs and (iii) R.M. Ketouse Society -Rs. 30 lakhs. In course of time, the petitioner made repayment of some of the loan amounts but could not repay the whole loans, therefore, the money lenders particularly, Mr. Hukavi Muru demanded repayment of the loan and took step for taking over the property of the petitioner's brother-in-law, the respondent/complainant. However, the petitioner/accused and his bother-in-law filed a Civil Suit No. 13/2008 in the Court of learned Addl. District Judge, Dimapur, praying for preventing Mr. Hukavi Muru from taking over the property of the respondent/complainant in execution of the mortgage deed and also for preventing or stopping Mr. Hukavi Muru from demanding any more amount in repayment of the loan. The Court passed an order dated 16.05.2008 by which Mr. Hukavi Muru was restrained from enforcing the mortgage deed dated 13.05.2006 and from claiming the outstanding amount of Rs. 48, 60,000/-, and also restrained him from disturbing the respondent/complainant from his peaceful enjoyment of his mortgage land and house. However, since the petitioner could not repay the loan amount, the respondent/complainant felt cheated and betrayed, therefore, filed the complaint case before the Judicial Magistrate, 1st Class Dimapur, praying for taking cognizance of the offences under section 418, 420 and 426 of IPC against the petitioner. The Magistrate after having recorded the statement of the respondent/complainant on oath was satisfied that prima facie case against the petitioner/accused under section 418, 420 and 426 of IPC has been made out. Accordingly, took cognizance and started the proceedings against the petitioner/accused.
3. Being aggrieved, the petitioner/accused has come to this Court stating that the learned Judicial Magistrate, 1st Class ought not to have taken cognizance of the offences under the sections of IPC, against him, as the facts and circumstances stated by the respondent/complainant in both the complaint petition and in his statement recorded under oath does not constitute any of the offences. The sections of IPC under which the cognizance has been taken against the petitioner/accused are as follows:
Page 2 of 13Criminal Revision Petition No. 3(K) of 2013 Section 418 IPC . Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.--Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person, whose interest, in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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.
Section 423. Dishonest or fraudulent execution of deed of transfer con- taining false statement of consideration.--Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed or instrument which purports to transfer or subject to any charge any property, or any interest therein, and which contains any false statement relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 426. Punishment for mischief.--Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
4. Heard Mr. Imti Longjem, learned counsel for the petitioner/accused and also heard Mr. Limawapang, learned counsel for the respondent/complainant.
5. It is submitted by Mr. Imti Longjem, learned counsel for the petitioner/accused that the 3(three) loans were obtained by the respondent/complainant from 3(three) money lenders on the request of the petitioner/accused but there was no dishonest intention on the part of the petitioner/accused to cheat the respondent/complainant. The fact that there was no dishonest intention on the part of the petitioner/accused to Page 3 of 13 Criminal Revision Petition No. 3(K) of 2013 cheat the respondent/complainant can be seen from the fact that the petitioner earnestly tried his best to repay the loans and in the process he had cleared the loan taken from R.M. Ketouse Society and a good portion of the loan taken from Mrs. Dolly K. Ezung, and negotiation for final settlement is going on. It is only the loan taken from Mr. Hukavi Muru which is creating a little problem though repayment of the same has also been made but, for the high interest charged by the money lender the loan has been made to linger on. That also, at least on 7(seven) occasions repayment was made, and all together Rs. 100,60,000/- has been paid against the loan of Rs. 58,00,000/- . Inspite of the repayment, the money lender still claims that the petitioner/accused has to pay Rs. 48,60,000/- more. Because of that a suit was filed by both the petitioner/accused and the respondent/complainant, and the same was registered as Civil Suit No. 13/2008, in the Court of Addl. District Judge, Dimapur. In that suit the learned District Judge after having heard the parties had passed an interim order by which the money lender has been restrained from enforcing the mortgage deed dated 13.05.2006, executed by the respondent/complainant and also restrained the money lender from claiming the amount of Rs. 48,60,000/-, and not to disturb peaceful possession of the mortgage property.
The learned counsel submitted that all these would show that the petitioner has all the intention to clear the loan and it has never been his intention to cheat the respondent/complainant. Therefore, the order dated 08.11.2012 of the learned Judicial Magistrate, 1st Class Dimapur, taking cognizance of the offences punishable under sections 418, 420, 423 & 426 IPC is illegal and amounts to abuse of Court's proceeding, as such, the same deserves to be quashed and set aside.
6. Learned counsel further submitted that the contains of both the complaint petition and the statement of the respondent/complainant recorded under oath, for the purpose of taking cognizance does not in any way constitute the offences charged against the petitioner, therefore, the decision of the learned Judicial Magistrate, 1st Class, Dimapur in taking cognizance of the offences charged against the petitioner was not based on the settle principles of law. In support of his submission, the learned counsel submitted that for the offences punishable under sections 418 and 420 of IPC, the element of cheating has to be made out. But, the entire facts and circumstances which are admitted by both the parties in no way shows any element of cheating.
The learned counsel further submitted that to attract punishment under section 423 of IPC there has to be execution of a deed of transfer containing false statement of Page 4 of 13 Criminal Revision Petition No. 3(K) of 2013 consideration but in this case the mortgage deed was executed by the respondent/complainant himself, therefore, the same cannot be applied against the petitioner.
On the last offence charged against the petitioner, the learned counsel submitted that no mischief has been committed by the petitioner and no facts and circumstances constituting the same has been stated or alleged in the complaint petition and in the statement of the respondent/complainant recorded under oath, therefore, cognizance of the offence by the learned Judicial Magistrate, 1st Class Dimapur, against the petitioner/accused was based on misconception and not as per the law. As such, the same has to be quashed and set aside.
Lastly, the learned counsel submitted that this Court in exercise of the power under section 482 of Code of Criminal Procedure, 1973 can quash and set aside such proceedings where the facts and circumstances of the case submitted by the parties does not constitute the offence charged against the accused and, where such proceedings amounts to abuse of courts' proceedings. In support of his submission, he referred to the judgment of the Hon'ble Supreme Court in the cases of ;(i) Alpic Finance Ltd. -versus- P. Sadasivan & Another reported in (2001) 3 SCC 513, para- 5, (ii) Ram Biraji Devi & Another -versus- Umesh Kumar Singh & Another reported in (2006) 6 SCC 669, para- 3 & 11, (iii) Indian Oil Corporation -versus- NEPC India Ltd. & Others reported in (2006) 6 SCC 736, para- 12 & 13 and (iv) Inder Mohan Goswami & Another - versus- State of Uttaranchal & Others reported in (2007) 12 SCC 1, para- 41 & 42. The citations along with the relevant paragraphs referred to by the learned counsel for the petitioner/accused are given herein below:-
(i). In the case of Alpic Finance Ltd. -versus- P. Sadasivan & Another reported in (2001) 3 SCC 513.
"5. Contours of the power under Section 482 Cr. P.C. have been explained in series of decisions by this Court. In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and Others 1976(3) SCC 736, it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of Magistrate issuing process against the accused could be quashed under the following circumstances: -
(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;Page 5 of 13
Criminal Revision Petition No. 3(K) of 2013 (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of complaint by legally competent authority and the like".
(ii). In the case of Ram Biraji Devi & Another -versus- Umesh Kumar Singh & Another reported in (2006) 6 SCC 669.
"3. Briefly stated the facts of the case are that the Complainant Umesh Kumar Singh. Respondent No.1 herein, filed a complaint against the appellants before the Chief Judicial Magistrate, Gaya, inter alia alleging that Smt. Ram Biraji Devi appellant No.1 herein, was allotted MIG Plot No. M-27 situated in Housing Board Colony, Gaya. In July 2002, both the appellants represented to the complainant that they were badly in need of money and wanted to transfer the allotted plot to some person interested to purchase the said plot. The complainant expressed his willingness to purchase the plot. It was alleged that the parties orally agreed that the complainant would pay to the appellants a sum of Rs. 4 lakhs as price of the plot and on payment of the said amount, the appellants would transfer the plot in favour of the complainant.
11. There cannot be any disagreement to the well-settled proposition of law that the High Court should exercise its inherent powers in extreme exceptions to quash an FIR or a complaint. The ratio as laid down in Trisuns Chemical Industry's case (supra) is of no help and assistance to the complainant in the facts and circumstances of the present case. The complaint instituted does not disclose that an offence under Section 420 is made out. Cognizance taken by the Magistrate thereon against the appellants for offences u/Ss. 406/419/420 and 120-B IPC are clearly an abuse of the process of court and interference by this Court is expedient in the interest of justice. This is a case of extreme exception where the High Court ought to have exercised its inherent jurisdiction and power to set aside the unwarranted and unjustified order of the Magistrate impugned before it by the appellants".
(iii). In the case Indian Oil Corporation -versus- NEPC India Ltd. & Others reported in (2006) 6 SCC 736.
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar Page 6 of 13 Criminal Revision Petition No. 3(K) of 2013 vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.
[2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are :
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any Page 7 of 13 Criminal Revision Petition No. 3(K) of 2013 criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP [2000 (2) SCC 636], this Court observed :
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
(iv). In the case of Inder Mohan Goswami & Another -versus- State of Uttaranchal & Others reported in (2007) 12 SCC 1.
"41. Section 415 IPC thus requires
1. deception of any person.
2. (a) fraudulently or dishonestly inducing that person-
(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 in body mind, reputation or property.
42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts 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 need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.".
7. In reply the learned counsel for the respondent/complainant, Mr. Limawapang submitted at the very outset that High Court's power under section 482 of Code of Criminal Procedure, 1973 is very limited and it has to be exercise only in the rarest of rare cases and this case is not one of such where exercise of such power is called for. The learned counsel further submitted that the petitioner, knowing fully well that he will not be in a position to repay the loan induced the respondent/complainant to take the Page 8 of 13 Criminal Revision Petition No. 3(K) of 2013 loan by mortgaging his land, therefore, there was clear intention on the part of the petitioner to cheat the respondent/complainant. Therefore, the learned Judicial Magistrate, 1st Class Dimapur, was right in taking cognizance of the offences under sections 418 and 420 of IPC against the petitioner/accused.
The learned counsel also submitted that the petitioner by his affidavits given to the respondent/complainant had admitted that the respondent/complainant had obtained the loans for him on his request and at the same time admitted also that he is solely responsible for repayment of the same but have not been able to do so. All these goes to show that the petitioner had cheated and betrayed the respondent/complainant, therefore, there is no room for interference of this Court on the proceeding drawn up by the learned Judicial Magistrate, 1st Class against him.
The learned counsel further submitted that there are sufficient materials to go for trial on the charges against the petitioner/accused, therefore, interference of this Court under section 482 of the Code of Criminal Procedure, 1973 is not call for.
In support of his submission the learned counsel cited the judgment of the Hon'ble Supreme Court passed in the case of Amit Kapoor -versus- Ramesh Chander & Another reported in (2012) 9 SCC 460. The learned counsel particularly referred to para- 26 & 27.11 of the judgment. The same are reproduced here below:-
"26. This further raises a question as to the wrongs which become actionable in accordance with law. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. In the case of Indian Oil Corporation v. NEPC India Ltd. & Ors. [(2006) 6 SCC 736], this Court took the similar view and upheld the order of the High Court declining to quash the criminal proceedings because a civil contract between the parties was pending.
27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to Page 9 of 13 Criminal Revision Petition No. 3(K) of 2013 cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27. 11 Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained".
8. I have considered the submissions of the both the learned counsels representing the parties and what is stated in the petitions i.e. the petition filed in this case and the complaint petition filed before the learned Judicial Magistrate, 1st Class, Dimapur, and also considered the statement of the respondent/complainant recorded under section 200 of Code of Criminal Procedure, 1973. Before I go any further, it would be worthwhile to put on record the statement of the respondent/complainant recorded under section 200 of the Code of Criminal Procedure, 1973. Therefore, the same is given here below:-
"STATEMENT ON OATH BY THE COMPLAINANT, SHRI. C.AMONG JAMIR. I Shri. C. Among Jamir, son of Shri. S.C Jamir, residing at Hlaf Nagarjan, Dimapur, Nagaland do hereby solemnly declare on oath and state as under:
1. That my brother-in-law, Shri. Toshipokba Longkumer having no permanent assets of his own persuaded me to borrow loans for him to invest in his private business. In the process, I had obtained the loans mortgaging my dwelling house/landed property located at Half Nagarjan, Dimapur, Nagaland, whereby my bother-in-law stood as the gurantor.
2. The list of the people from whom the loans were obtained are as follows:-
(i) Mrs. Dolly Angami, W/o Thungbemo of Dimapur. A sum of Rupees 17 lakhs on 15th May, 2005.
(ii) Hukavi Muro Society, 2 ½ Mile, Dimapur, Nagaland. A sum of Rupees 50 lakhs on 13th May, 2006.
(iii) Chairman, Ketousie Socity Ltd. Kohima, Nagaland. A um of Rs. 30 lakhs on 26th of August, 2006.
3. The loans taken from the three different parties were at a very high interest rate ranging from 5% to 7% per month.
4. In order to save the image and reputation of my family and to save my house/land I paid a portion of the loan amount since my brother-in-law was unable to pay the said loans.
5. On 26-08-2006, a sale deed was executed between me and R.M. Ketousie Society to obtain the loan of Rs. 30 lakhs. However, the sale deed purported to have been executed between me and R.M. JKetousie Society was to bypass the Nagaland Money Lenders Act, though I had borrowed the Money from my brother-in-law to help him with an honest intention.
6. That ever since the said loans were taken, my father has been harassed continuously by the money lenders and my whole family circle including my father who is a high profile personality both at the National level and State level has been facing mental agony, shame and loss of reputation in the eye of the public.
Page 10 of 13Criminal Revision Petition No. 3(K) of 2013
7. My family members namely, Shri. S.I. Jamir, C. Apok Jamir, Nungtok and Imli had on many occasions written letters to the money lenders requesting for extension of time to repay the loans since my bother-in-law was not in a position to repay them.
8. That my brother-in-law, Shri. Toshipokba Longkumer executed an affidavit dated 30-04-08 stating that the mortgaged deed/sale deed executed on 13- 05-2006 between me and Kukavi Muru stating that since he was urgently in need of money insisted me to stand as borrower by mortgaging my house. In the said declaration my brother-in-law, Shri. Toshipokba Longkumer further stated that he shall be held solely responsible for the mortgaged deed dated 13-05-2006.
9. On 11-12-08 by an affidavit of declaration my bother-in-law, Shri. Toshipokba Longkumer stated that the loan amount which had been accumulated to Rs. 96,72,000/- (ninety six lakhs, seventy two thousand) only was taken from Ketousie Society was meant for himself. He had further stated in the declaration that since he did not have any property neither moveable or immovable compelled me to stand as surety by mortgaging my house. In the declaration he had further stated that he had betrayed me.
Further on 23-12-2011, my bother-in-law, Shri. Toshipokba Longkumer had written a letter to the chairman, Ketousie Society stating that he was very sorry and unable to pay the loan taken from them and assuring them that he will make the payment of the capital and interest by the end of Jan'2012 or 1st week of Feb 2012. However, the same was not fulfilled.
10. On the approach of me and my family, my brother-in-law, Shri. Toshipokba Longkumer had made an affidavit of declaration dated, 23-08-2012 whereby he stated that he shall be held solely responsible for all the matter concerning the loans taken by me on his behalf.
In spite of repeated assurance given by my brother-in-law, Shri. Toshipokba Longkumer to repay the loans amount with interest he failed to do so which clearly demonstrates his intention to cheat and obtain undue advantage by betraying me. Though in order to extend a helping hand to my needy brother-in- law, Shri. Toshipokba Lonkumer, I took the risk and executing a legal document without anticipating any act of betrayal since he is my brother-in-law.
Though me and my family members requested him on many occasions to repay the loans which he had assured me several times in written by way of affidavits declaration, letters etc. but all went in vain. Now finding no other option I am approaching this Hon'ble Court to summon him and take necessary actions as deemed fit and proper in the interest of justice.
R.O & AC.
Sd-
Illegible 8/11/12"
9. Before a Magistrate takes cognizance of offence or offences charged against an accused, statement of the complainant and that of witness or witnesses are recorded to ascertain whether prima facie case is made out against the accused or not. In other words, the Magistrate has to find out first if the facts and circumstances disclosed in the complaint petition and by the complainant in his statement under oath and the Page 11 of 13 Criminal Revision Petition No. 3(K) of 2013 statement of the witness or witnesses if prove would constitute the offence(s) charged against the accused. It is only when the Magistrate finds that the facts and circumstances stated in the complaint petition are supported by the petitioner's statement recorded under oath and statement of the witness or witnesses which are also given under oath, if proved would constitute the offence or offences charged against the accused, it is only then that the Magistrate shall take cognizance and proceed with the trial.
10. In this case, it is admitted fact that the respondent/complainant had obtained the loan by mortgaging his landed property in order to help his brother-in-law i.e. the petitioner. In fact, the respondent/complainant has stated in his statement given under oath at paragraph-10 that he had taken the loan in order to help his brother-in-law who was in need. There was not even a whisper of cheating from the side of the respondent/complainant. Further, from the events that followed the loan transaction, i.e. repayment of the loans on different occasions by the petitioner, though not in full and which are not denied by the respondent/complainant, one can gather that the petitioner had all the intention to repay the same. With such intention clearly displayed by his own conduct, and under the facts and circumstances which are admittedly true, this Court is unable to find anything that could constitute the crimes charged against the petitioner/accused.
In a case of cheating presence of mens rea is number one ingredient to constitute the offence. Without it no charge of cheating can succeed. The fact that there was no intention to cheat at the beginning of the transaction, the inability to repay the loan will not make any difference.
11. Further, the fact that the petitioner and the respondent/complainant filed a joint civil suit before the learned Addl. District Judge, Dimapur for restraining Mr. Hukavi Muru, one of the money lenders from executing the mortgage deed in respect of the property of the respondent/complainant and also for restraining him from taking more money from the petitioner/accused besides what he has already taken shows that between the petitioner/accused and the respondent/complainant there has always been understanding and trust. Under such facts and circumstances there is no reason to charge the petitioner/complainant under such sections of IPC.
12. On the charge under section 423 IPC, it is rightly submitted by the learned counsel of the petitioner that there has to be an allegation that the accused had Page 12 of 13 Criminal Revision Petition No. 3(K) of 2013 executed a deed of transfer with false statement of consideration. But in this case the mortgage deed was admittedly executed by the respondent/complainant himself therefore, there is no material to take cognizance of the offence against the petitioner/accused.
Lastly, there is no whisper of mischief having been committed by the petitioner in both the complaint petition and the statement of the complainant recorded under oath.
In view of what has been stated above, this Court find nothing based on which cognizance of the offences charged against the petitioner could have been taken by the Judicial Magistrate, 1st Class, Dimapur in Complaint Case No. 04/2012.
13. In the judgments cited by both the learned counsels the principle of law established by the Hon'ble Supreme Court has been made very clear that where in a case facts and circumstances stated by the complainant if proved or is uncontroverted would not constitute the offence or offences charged against the accused no cognizance should be taken and no proceeding should be initiated. But if initiated, High Court in exercise of the power under section 482 of Code of Criminal Procedure, 1973 can set aside and quash the same. Further, it is also clear from the judgments that when in a complain case if it is found that the complainant had filed the complaint with an ulterior motive to compel the accused through the criminal proceeding to do something which he is otherwise entitled to claim from the accused through other lawful means such proceeding is nothing but abuse of courts' proceeding, therefore, can be quashed and set aside.
14. As stated above, the facts and circumstances in the complaint case does not disclose prima facie that the petitioner/accused is likely to have committed the offences charged against him, therefore, in the light of the principle of law established by the Hon'ble Supreme Court in the cases given above, I am of the considered view that the proceeding of Complaint Case No. 04/2012 pending before the Judicial Magistrate, 1st Class, Dimapur, Nagaland deserves to be quashed and set aside. Accordingly, the same is quashed and set aside.
With this, the Criminal Revision Petition is disposed.
JUDGE Kevi Page 13 of 13