Jharkhand High Court
Neelam Lata vs State Of Jharkhand And Anr. on 5 December, 2007
Equivalent citations: 2008(56)BLJR1352, 2008 CRI. L. J. (NOC) 695 (ALL.) = 2008 (2) ALJ 681, 2008 (1) AIR JHAR R 838 (2010) 4 JCR 407 (JHA), (2010) 4 JCR 407 (JHA)
Author: R.R. Prasad
Bench: R.R. Prasad
JUDGMENT R.R. Prasad, J.
Page 1352
1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 9.3.2006 passed by Chief Judicial Magistrate, Koderma whereby and where under cognizance of the offence under Sections 420 and 408 of the Indian Penal Code has been taken against the petitioner and others.
2. Before adverting to the submissions made on behalf of the parties the fact giving rise this application needs to be notice of.
It appears that opposite party No. 2 lodged a complaint alleging therein that when he came to know that a scheme for construction of Morang/soil road from village Jamkati to Pogdanda has been sanctioned, he met petitioner posted as Block Development Officer, Chandwara Block who asked him to meet with the Head Clerk Page 1353 Girja Prasad and the Assistant, Jitendra Kumar and thereupon when he met with those two persons, they asked for money in lieu of appointing him as an agent for execution of the said scheme and thereupon the complainant managed Rs. 30,000/- which was given to be said Girja Prasad and Jitendra Kumar in presence of two witnesses and then two persons advised the complaint to get an agent nominated for executing the said scheme in the Gram Sabha but due to some unavoidable reason, none could be nominated in the meeting of the Gram Sabha and then they asked for money from the accused persons but the accused persons not only refused to return the money but also abused them.
On filing the complaint, statement was taken of the complainant on solemn affirmation and then statement of witnesses were also recorded in course of enquiry. Thereupon cognizance of the offences was taken by the impugned order.
Being aggrieved with that, the petitioner has preferred this application.
3. Learned Counsel appearing for the petitioner submits that this petitioner, who was posted at the relevant (Sic) time as Block Development Officer, Chandwara has never been alleged to have demanded money in lieu of appointing the complainant as an agent for executing the scheme, rather the petitioner has been said to have asked the complainant to go before the Head Clerk and the Clerk when the complainant asked about the scheme and if the other accused allegedly made any demand or accepted anything in lieu of giving any benefit to the complainant, the petitioner cannot be held responsible for that end that under the procedure of appointing an agent for executing a scheme, allegation levelled against the accused persons seems to be baseless as according to the procedure a general meeting of the Gram Sabha is convened for selecting the beneficiary committee for executing the scheme and the beneficiary committee does decide the person, who is to execute the work and under this situation, putting demand of money by the Head Clerk or the Clerk of the Block seems to be quite unnatural as they are not supposed under the scheme to appoint any agent. Learned Counsel by putting more emphasis on the averment made in the complaint as well as statement made by the witnesses during enquiry submits that there has been absolutely no allegation against this petitioner so as to constitute any offence either under Section 420 or under Section 408 of the Indian Penal Code. Learned Counsel also submits that petitioner being a Government official has got statutory protection under Section 197 of the Indian Penal Code and hence sanction was required to be accorded by the competent authority before cognizance of the offence alleged is taken against the petitioner.
4. As against this, learned Counsel appearing for the opposite party No. 2 submits that offence alleged is never part of the duty and hence petitioner cannot be said to have done the alleged act in discharging his official duty and therefore, no sanction in terms of Section 197 is required to be accorded before launching the prosecution against the petitioner and that allegation made in the complaint as well as statement made by the complainant in his solemn affirmation and also the statement made by the witnesses in course of enquiry do constitute the offence under which cognizance has been taken.
5. Having heard learned Counsel appearing for the parties the only question which arises for consideration as to whether the statement made by the complainant in the complaint petition as well as on solemn affirmation and also statement made by Page 1354 the witnesses in course of enquiry do constitute any offence under which cognizance has been taken against the petitioner and, therefore provision under Section 420 of the Indian Penal Code needs to be taken notice of which reads as follows:
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 or either description for a term which may extend to seven years, and shall also be liable to file.
Having noticed with the provisions following ingredients are necessary to be there to constitute offence under Section 420 (1) there should be fraudulent or dishonest inducement of a person by deceiving (Sic) (2)(a) the person so deceived should be induced to deliver any property to any person, 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.
Therefore, 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 cannot be made out. After deception has been practiced, the person deceived should get induced to do or omit to do something. Then, the question arises as to what is deception? In the ordinary sense deception has in it the element of misleading or making a person believe something that is false. According to Webster's New International Dictionary the word 'deceived' indicates inculcating of one so that he takes the false as true, the unreal as existent, the spurious genuine"
6. Having noticed the ingredients with respect to offence under Section 420 one needs to consider in the facts and circumstances of the present case as to whether the accused person has practiced deception upon the complainant. Coming to the case of the complaint it does appear that when complainant approached the petitioner he asked about the scheme from the petitioner, who asked the complainant to go before the Head Clerk or the Clerk of the Block and as per the allegation, both of them asked for money for allotting the scheme in his name which was paid and they asked the complainant to nominate as agent for executing the work in the Gram Sabha but due to unavoidable reason, the name of the agent could not be nominated in the meeting of the Gram Sabha. Taking this allegation to be true, I do not find any element of deception at all in the allegation as none of the accused by misrepresenting the fact induced the complainant to part with the money. On the other hand, it is the case of the complainant that due to some reason, agent could not be appointed in the Gram Sabha meeting.
7. Under the circumstances, there is absolutely no element of deception. Moreover, so far this petitioner is concerned, she has never been alleged to nave asked the money in order to allot the work of the scheme to the complainant and under the Page 1355 situation, as stated above, no offence is made out under Section 420 of the Indian Penal Code against the petitioner. So far the offence under Section 408 is concerned, it is not at all attracted against the petitioner.
8. In the circumstances the order dated 9.3.2006 taking cognizance of the offence against the petitioner is hereby quashed.
In the result, this application is allowed.