Orissa High Court
Puja Baishya And Another vs Prasanta Sahu And Another ... Opposite ... on 4 October, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC NO.4134 of 2022
(In the matter of application under Section 482 of the
Criminal Procedure Code, 1973).
Puja Baishya and another ... Petitioners
-versus-
Prasanta Sahu and another ... Opposite Parties
For Petitioners : Mr. B.K. Nayak, Advocate
For Opposite Parties : Mr. S.N. Mishra-4,
Advocate For O.P.No.1
Mrs. S.R. Sahoo, ASC
For O.P.No.2
CORAM:
JUSTICE G. SATAPATHY
DATE OF JUDGMENT :04.10.2023
G. Satapathy, J.
1. This is an application under Section 482 of Cr.P.C. by the petitioners seeking to quash the impugned order passed on 11.08.2022 by the learned Nyayadhikari-Cum-J.M.F.C., Gram Nyayalaya, Junagarh, Kalahandi in 1.C.C. No.1 of 2022 and, consequently, the criminal proceeding arising therein. CRLMC No.4134 of 2022 Page 1 of 15
2. The background facts are that the petitioners are the accused persons in the complaint in 1.C.C. No.1 of 2022 instituted by OPNo.1 stating therein that on 22.02.2021, the complainant sent a friend request through facebook which was accepted by the petitioner No.1 on 23.02.2021 and thereafter, both of them exchanged their mobile as well as WhatsApp numbers and they developed relationship through WhatsApp chats, but one day, petitioner No.1 approached OPNo.1 for monetary help for a sum of Rs.10,00,000/- (Rupees ten lakhs) to develop some business on assurance to return the money and, accordingly, OPNo.1 on good faith, provided Rs.6,97,000/- to petitioners and sister-in-law of the petitioner No.1 namely Pinki Baishya through different modes like Phone Pay, Google Pay and account transfer on different dates. However, on 02.01.2022 at about 10 PM, the petitioners threatened to kill OPNo.1 and sent obscene and sexually explicit photographs to the WhatsApp CRLMC No.4134 of 2022 Page 2 of 15 number of OPNo.1 and got some inappropriate and objectionable photographs of OPNo.1 viral to blackmail him. According to OPNo.1, the petitioners had fraudulently cheated him in this way and he accordingly served a pleader notice to the petitioners on 05.01.2022, but when they remained silent, OPNo.1 instituted the complaint with aforesaid averment.
3. On receipt of complaint, the learned Nyayadhikari-Cum-J.M.F.C., Gram Nyayalaya, Junagarh, Kalahandi registered it and recorded the initial statement of the complainant-cum-OPNo.1 as well as the statement of two witnesses in an inquiry under Section 202 of Cr.P.C. After being satisfied with the averments made in the complaint together with the initial statement and statement of witnesses in t he enquiry, the learned Nyayadhikari-Cum-J.M.F.C., Gram Nyayalaya, Junagarh, Kalahandi by the impugned order took cognizance of offences under Sections 507/420/34 of IPC read with Section 67/67- CRLMC No.4134 of 2022 Page 3 of 15 A of IT Act, 2000. Hence, this application under Section 482 of Cr.P.C. by the petitioners.
4. In the course of hearing of CRLMC, Mr. B.K. Nayak, learned counsel for the petitioners has submitted that neither the ingredients of offences under Section 507/420/34 of IPC are disclosed from a perusal of entire materials placed in the complaint nor are the petitioners responsible for any offence. He has further submitted that since OPNo.1 had threatened the petitioners as well as uploaded the objectionable photographs in the social media, petitioner No.1 lodged an FIR against OPNo.1 in her native State, which is Assam and, accordingly, FIR was registered against OP No.1 on 25.12.2021, but in order to escape from the criminal liability, OPNo.1 has manufactured this case against the petitioners after some days of lodging of FIR by petitioner No.1 in Assam and, therefore, the complaint in 1.C.C. No.1 of 2022 is liable to be quashed along with the impugned order.
CRLMC No.4134 of 2022 Page 4 of 15
5. Mr. S.N. Mishra-4, learned counsel for the O.P.No.1, however, has resisted the claim of the petitioners by submitting inter-alia that the materials placed on record disclose a strong prima facie case of cheating and, therefore, the present complaint cannot be quashed against the petitioners.
6. Mrs. S.R. Sahoo, learned ASC, however, prays to pass appropriate order in this matter.
7. Rival submissions have made it clear that the petitioners have questioned the legality of the impugned order and the criminal proceeding against them, whereas the OPNo.1 supports the impugned order as well as the criminal proceeding. A careful perusal of the complaint instituted by OPNo.1 against the petitioners unambiguously goes to disclose as to how the complainant had transferred a sum of Rs.6,97,000/- in favour of the petitioners and one Pinki Saikia, but there appears no dispute about the friendship developed between petitioner No.1 and OPNo.1. Further, the complaint also discloses that the CRLMC No.4134 of 2022 Page 5 of 15 petitioner No.1 had approached the complainant (OPNo.1) for help of Rs.10,00,000/- for developing her business and on good faith, the complainant had transferred the aforesaid amount of Rs.6,97,000/- to petitioners in the manner as provided in the complaint, but there appears allegation against the petitioners for threatening the complainant and transmitting obscene language and sexually explicit acts to the WhatsApp number of the complainant(OP No.1) and threatening to make it viral and thereafter blackmailing the complainant. In support of the averments made in the complaint, the complainant in his initial statement had reiterated transfer of the money to the petitioners and one Pinki Baishya, but when he(complainant) asked for money, they threatened and abused him and sent his photographs to his relatives and friends. Further, the witness No. 1 and 2 in their inquiry have stated about complainant transferring an amount of Rs.6,97,000/- to the bank CRLMC No.4134 of 2022 Page 6 of 15 account of the petitioners and petitioner No.1 getting nude photos of the complainant viral.
8. Above are the admitted allegation and facts involved in this case, but the learned Magistrate has taken cognizance of offence under Sections 294/507/420/34 of the IPC read with Section 67/67A of the IT Act. What constitute cheating has been described in Section 415 of the IPC in the following words:-
"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"."
Thus, the essential ingredients of the offense of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person so deceived-
(i) to deliver any property to any person;
or CRLMC No.4134 of 2022 Page 7 of 15
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing the person so deceived to do or omit to do anything which he would not do or omit if he were no 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.
9. Hence, a fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
10. On the other hand, section 420 IPC defines cheating and dishonestly inducing delivery of property which reads as under: -
"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."CRLMC No.4134 of 2022 Page 8 of 15
11. Section 420 of IPC is a serious form of cheating that includes inducement in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
12. Besides, Uma Shankar Gopalika Vs. State of Bihar & Anr.; (2005) 10 SCC 336 the Apex Court has been pleased to observe as under:-
XXX XXX XXX "6. every breach of contract would not give rise to an offence of cheating and only in those cases of breach of contract would amount to cheating where there was any deception played at the very inception".
XXX XXX XXX
13. Time and again, the Apex Court has
cautioned about converting purely civil disputes into criminal cases which is apparent from the observation made by Apex Court in Indian Oil Corporation Vrs. CRLMC No.4134 of 2022 Page 9 of 15 NEPC India Ltd. & Ors; (2006) 6 SCC 736 wherein it has been held thus:-
"13. ...any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."
14. From a conscious and meticulous perusal of materials placed on record keeping in view the legal mandates as laid down in the cases referred to above, there appears absolutely nil material against the petitioners to have any dishonest and fraudulent intention. Neither the complaint nor the statement of complainant/witnesses discloses the basic ingredients of offence of cheating which is fraudulent or dishonest intention of the petitioners. Accepting, but not admitting the allegation of cheating at its face value, it is not understood as to how the complainant advanced different sum of money on 28 dates and how the complainant could not be able to smell the intention of the petitioners which is of course not disclosed either in the complaint or in the initial CRLMC No.4134 of 2022 Page 10 of 15 statement of complainant/statement of witnesses in an enquiry U/S.202 of Cr.P.C. In such situation and facts, the essential ingredients of offence U/S.420 of IPC being clearly absent from a bare perusal of materials placed on record, prima facie an offence U/S.420 of IPC cannot be attracted against the petitioners. However, the transfer of money to the petitioners in the peculiar facts and circumstance of the case may give rise to civil liability, but the same is of course subject to proof.
15. Reverting back to the ingredients of Section 507 of IPC, it appears that the foundation of criminal intimidation must be by an anonymous communication, but here in this case, even if the allegation made by OPNo.1-complainant is taken into consideration, it can be said that the communication was made by the petitioners, but not received from any anonymous person and therefore, Section 507 of IPC is not at all attracted nor the ingredients of Section 507 of IPC has been disclosed either in the CRLMC No.4134 of 2022 Page 11 of 15 complaint nor in the initial statement of the complainant nor in the statements of witnesses recorded in the enquiry. Besides, there being no allegation of causing annoyance to the complainant, the basic ingredients of Section 294 of IPC was also not disclosed in the complaint. It is, therefore, very clear that no ingredients of offences under Sections 420/506/294 of IPC were found out from a bare perusal of complaint/initial statement of the complainant and statement of witnesses recorded in the enquiry.
16. On coming back to offences U/S.67/67-A of the IT Act, the complaint only discloses the following allegation:-
"sending/transmitting obscene language, sexually explicit act to the Whatsapp number of the complainant and threatening for video viral and blackmailing".
In the above context, the complainant in his initial statement has not whispered a single word on above issue except the words "sent my photos to my relatives and friends". On the other hand, the two CRLMC No.4134 of 2022 Page 12 of 15 witnesses examined in enquiry U/S.202 of Cr.P.C. stated "Pooja has made viral the complainant's nude photos". Section 67 of the IT Act provides for punishment for publishing or transmitting obscene material in electronic form, whereas Section 67-A of the IT Act stipulates punishment for publishing or transmitting material containing sexually explicit act etc. in electronic form, but such allegation of "material containing sexually explicit act" is conspicuously absent either in the complaint or other materials placed on record. Further, there is no allegation made in the complaint that the petitioners had in fact sent/transmitted any obscene materials, no matter it is alleged in the complaint about sending/transmitting of obscene language, which is not the ingredients of Section 67 of IT Act. Besides, this Court is also conscious of the fact that complaints are normally drafted by legal expert, who would not naturally omit to mention the ingredients of offence in the complaint, but mere mentioning/including the CRLMC No.4134 of 2022 Page 13 of 15 legal language used in the definition of the offence, in the complaint would not by itself attract the offence, unless the act of the accused person would fall within the four corners of the ingredient of the offence. In the ultimate analysis of facts and circumstance involved in this case, especially when the complainant and his witnesses had failed to reveal to state any obscene material/ material containing sexually explicit act being transmitted by the petitioners, it can clearly be concluded that the ingredients of offence U/Ss.67/67-A of the IT Act are not attracted from a bare perusal of complaint and supporting materials produced by the complainant.
17. The net result of the discussions made hereinabove is that the uncontroverted allegations made in the complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the petitioners.
CRLMC No.4134 of 2022 Page 14 of 15
18. In the result, the CRLMC stands allowed on contest but in circumstance, there is no order as to costs. As a logical sequitur, the impugned order passed on 11.08.2022 by the learned Nyayadhikari- Cum-J.M.F.C., Gram Nyayalaya, Junagarh, Kalahandi in 1.C.C. No.1 of 2022 and, consequently, the criminal proceeding arising therein stand quashed.
(G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 4th October, 2023/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Jr.Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Oct-2023 16:37:09 CRLMC No.4134 of 2022 Page 15 of 15