Allahabad High Court
Sunil Kumar Singh vs State Of U.P. And Another on 17 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 922, 2019 (4) ALJ 774
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 02.04.2019 Judgment delivered on 17.05.2019 Court No. - 70 Case :- CRIMINAL REVISION No. - 1041 of 2016 Revisionist :- Sunil Kumar Singh Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Indra Raj Singh,Adarsh Singh Counsel for Opposite Party :- G.A.,Bipin Lal Srivastava Hon'ble Sanjay Kumar Singh,J.
1. Heard Mr. Adarsh Singh, learned counsel for the revisionist, Mr. Bipin Lal Srivastava, learned counsel for opposite party No. 2 as well as learned Additional Government Advocate representing the State of U.P. and perused the materials available on record.
2. This criminal revision under Section 397/401 Cr.P.C. has been preferred by the revisionist against the order dated 16.3.2016 passed by Additional Chief Judicial Magistrate, court No. 1, Varanasi in Case No. 1632 of 2016 (State vs Sunil Kumar Singh) arising out of Case Crime No. 302 of 2015, under sections 419 and 420 IPC, PS Cholapur, District Varanasi, whereby the revisionist has been summoned to face trial.
3. Filtering out unnecessary detail, the brief facts of the case as emerges on record is that Amar Shaheed Inter College, Ayar, Varanasi is a duly recognized Institution under the U.P. Intermediate Education Act, 1921 and also governed under U.P. Act No. 24 of 1971, U.P. Act No. 5 of 1982 and the the Rules framed thereunder. The said Institution is managed by a recognized Committee of Management and the said Committee of Management is authorized to appoint the employees in the Institution. The Committee of Management of the aforesaid Institution appointed the revisionist on the post of Clerk-cum-Librarian against the leave vacancy with effect from 1.10.1986 to 20.10.1987. The said appointment of the revisionist was further approved by the District Inspector of Schools vide order dated 25.10.1986, appended as annexure-1 to the affidavit filed in support of the revision.
4. The services of the revisionist on the said post came to an end on 28.7.1987 on account of joining of incumbent after completing his leave. Therefore, revisionist during the period of 01.10.1986 to 28.07.1987 managed his study in Shashtri-IInd Year Examination conducted by Sampurnanand Sanskrit University, Varanasi and on 26.9.1987 Shashtri degree was awarded to the revisionist. Thereafter, on the basis of said Shashtri degree, the revisionist was appointed as Lecturer in the aforesaid Institution as Lecturer (Sanskrit).
5. It is pointed out on behalf of the revisionist that at this stage the revisionist came in hot water, without any fault of him. It is submitted that opposite party No. 2/informant of this case is practicing Advocate in district court, Varanasi, though, the opposite party No. 2 is not aggrieved with regard to educational qualifications and appointment of the revisionist, but he with a view to extract some money from the revisionist made a false complaint dated 01.05.2015 to the District Inspector of Schools, Varanasi against the revisionist making allegations that the Shashtri degree dated 26.09.1987 obtained by the revisionist is a forged document. On the said complaint dated 01.05.2015, District Inspector of Schools by order dated 25.06.2015 directed the Assistant District Inspector of Schools, Varanasi to make an enquiry. Pursuant thereto, a detailed enquiry was conducted and enquiry report dated 28.08.2015 was submitted by Additional District Inspector of Schools, Varanasi to District Inspector of Schools, Varanasi mentioning therein that the allegations levelled by opposite party No. 2 against the revisionist in his complaint dated 1.5.2015 are wholly false. A specific finding has been recorded in the enquiry report dated 28.8.2015 that the revisionist Sunil Kumar Singh has not committed any fraud in obtaining his appointment and the Shashtri degree awarded to the revisionist is not a forged document.
6. It is next submitted that when opposite party No. 2 could not succeed in his plan, then he, on the same facts and allegations, lodged the impugned FIR on 04.09.2015 concealing his earlier complaint dated 01.05.2015 and enquiry report dated 28.08.2015, registered as Case Crime No. 302 of 2015, under Sections 419 and 420 IPC at police station Cholapur, District Varanasi, against the revisionist. The Investigating Officer after conducting investigation, submitted charge sheet dated 02.01.2016 against the revisionist, on which the Magistrate concerned took cognizance on 16.03.2016 and revisionist has been summoned to face trial.
7. Assailing the impugned summoning order dated 16.03.2016 and impugned criminal proceedings against the revisionist, the learned counsel for the revisionist submitted that:-
7.1 . Opposite party No. 2 is not an aggrieved person in any manner by the appointment of the revisionist, either on the post of Clerk-cum-Librarian or on the post of Lecturer (Sanskrit), ergo, opposite party No. 2 had no locus to file a complaint dated 01.05.2015 against the revisionist to the D.I.O.S., Varanasi and also has no locus to lodge the FIR dated 04.09.2015 against the revisionist.
7.2 . The impugned criminal proceedings have been initiated by opposite party No. 2 with malicious intention for ulterior purposes in order to settle his personal score despite knowing the fact that on his complaint dated 01.05.2015, a detailed enquiry had been conducted in the matter and all the allegations levelled by him against the revisionist have been found false.
7.3 . The learned counsel for the revisionist vehemently urged that the Investigating Officer has also not conducted the fair investigation in collusion of the opposite party No. 2, and as such, he also did not discharge his duties as an independent Investigating Officer.
In support of the said submission, learned counsel for the revisionist placed reliance upon the judgment of Apex Court in the case of Babubhai vs. State of Gujarat and others, (2011) 1 Supreme Court Cases (Cri) 336. Pragraphs 32 and 45 reads as unders:
"32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer "is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur Vs. State of Punjab, Jaumuna Chaudhary v. State of Bihar, SCC at p.780 para 11 and Mahmood v. State of U.P.).
45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation."
7.4. The Magistrate concerned also did not apply his mind while summoning the revisionist by the impugned order dated 16.03.2016, which is quoted herein below:-
"16.03.2016 vkt vkjksi izkIr gqvkA vkns'k gqvk fd ntZ jft0 gksA ,Q0vkbZ0vkj0 layXu fd;k x;kA vfHk;qDr ds fo:) lEeu fnukad 23-01-16 ds fy;s tkjh gksA "
On the said submission, it is vehemently urged that the impugned order dated 16.03.2016 on the face of record itself is a laconic order and has been passed in a very mechanical manner without applying judicial mind, therefore same is not liable to be accepted in the eye of law in view of the judgment of this Court in the case of Mahboob & Ors. vs. State of U.P. Through Secy. Home Department Civil Secretariat & Anr., 2017 (98) ACC 593, in which the co-ordinate Bench of this Court has quashed the summoning order with a direction to pass fresh order because in that case, learned Magistrate has passed a very cryptic order simply by saying that from the statement of the complainant as well as other witnesses recorded under Sections 200 and 202 Cr.P.C. there are no sufficient ground to summon the accused persons.
7.5. Much emphasis has been given on behalf of the revisionist that in the present case impugned FIR dated 04.09.2015 has been lodged after about 28 years of obtaining the Shashtri degree dated 26.09.1987 by the revisionist, without any plausible explanation of the delay in lodging the FIR. On the said fact, it is urged that entire criminal proceedings against the revisionist is liable to be quashed on this ground alone. In support of this submission, reliance has been placed upon the judgment of the Apex Court in the case of Kishan Singh vs. Gurpal Singh, AIR 2010 SCC 3624, wherein the entire criminal proceedings has been quashed by the Apex Court on the ground of inordinate delay in lodging the FIR. Paragraph Nos. 21, 22, 23 and 24 of the aforesaid judgment are quoted herein below:-
"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Sahib Singh Vs. State of Haryana, AIR 1997 SC 3247].
22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. Vs. State of U.P. & Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. & Ors., (2008) 12 SCC 531).
23. The case before us relates to a question of the genuineness of the agreement to sell dated 4.1.1988. The said agreement was between Kishori Lal and respondents and according to the terms of the said agreement, the sale deed was to be executed by 10.6.1989. As the sale deed was not executed within the said time, suit for specific performance was filed by the other party in 1989 which was decreed in 1996. So far as the present appellants are concerned, agreement to sell dated 22.10.1988 was executed in favour of their father and the sale deed was to be executed by 15.6.1989. No action was taken till 1996 for non-execution of the sale deed. The appellants' father approached the court after 7 years by filing Suit No.81/1996 for specific performance. However, by that time, the suit filed by the present respondents stood decreed. The appellants' father filed another Suit No.1075/96 for setting aside the judgment and decree passed in favour of the respondents 1 to 4. The said suit was dismissed by the Additional District Judge (Senior Division), Khanna on 10.6.2002. Subsequently, the appellants preferred RFA No. 2488/02 on 15.7.2002 against the aforesaid order, and the said appeal is still pending before the Punjab & Haryana High Court.
24. It is to be noted that the appellants' father Kishan Singh lodged FIR No.144/02 on 23.7.2002 through his attorney Jaswant Singh Mann under Sections 420/323/ 467/468/ 471/120-B IPC, against the respondents. The allegations made in the FIR were substantially similar to the allegations made by the appellants in Civil Suit No.1075/96, which had been decided against them. It is evident that the aforesaid FIR was filed with inordinate delay and there has been no plausible explanation for the same. The appellants lodged the aforesaid FIR only after meeting their Waterloo in the Civil Court. Thus, it is evident that the FIR was lodged with the sole intention of harassing the respondents and enmeshing them in long and arduous criminal proceedings. We are of the view that such an action on the part of the appellants' father would not be bona fide, and the criminal proceedings initiated by him against the respondents amount to an abuse of the process of law."
7.6. The aforesaid judgment of Kishan Singh (Supra) has been further followed by this Court in the case of Vimla Devi vs. State of Uttar Pradesh 2012 (5) AWC 4964. Paragraphs 9 and 10 of the said judgment are reproduced herein below:-
"9. Further since complainant-respondent no. 2 is not going to gain anything by launching a malicious prosecution after three decades, the applicant should not be permitted to be harassed and to undergo the rigmarole of criminal trial after such a long gap. In my aforesaid opinion, I am fortified by the Apex Court decision in Parminder Kaur Vs. State of U.P.: 2010 SC 840 wherein, it has been held by the Apex Court as under:-
"13. We find that the huge counter-affidavit of about 346 pages is of no use as it merely relates to the pending litigation between the parties. However, one thing is very certain therefrom that the appellant on the one hand and the respondent No. 2 on the other hand are bitterly fighting civil litigations which are pending before the Rampur Courts. These litigations started from the year 2002 firstly in revenue Courts and then with the filing of three Civil Suits about which we have already mentioned above. The concerned FIR appears to have been filed on 27.2.2004, i.e., when the civil litigations, i.e., CS No. 266 of 2002, CS 267 of 2002 and CS 268 of 2002 were pending. The very fact that the criminal proceedings were initiated by the respondent No. 2 who was none else but the real brother-in-law (husband's real younger brother) against his sister-in-law whom he described as an "unrelated person", the appellant herein, who is about 75 years of age speaks volumes insofar as propriety of such criminal prosecutions is concerned. It is absolutely clear from the manner in which the litigation is being fought that it is nothing but to wreak vengeance that the criminal prosecution has been started. We particularly find the total absence of bona fides on the part of the respondent No. 2 to file the First Information Report which we have quoted above."
10. On the question of unexplained delay and that being the reason of quashing of FIR I am fortified by apex court opinion in Kishan Singh (D) through L. Rs. v. Gurpal Singh and Ors.:AIR 2010 SC 3624, wherein it has been held as under:-
"..............The FIR has been filed only on 23.07.2002 i.e. after filing the RFA No. 2488/2002 before the High Court on 15.07.2002. Therefore, there is an inordinate delay on the part of the appellants' father in filing the FIR and there is no explanation whatsoever for the same.
Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide:Sahib Singh v. State of Haryana, AIR 1997 SC 3247]: (1997 AIR SCW 3306).
In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh and Ors. v. Maharaj Singh and Anr., AIR 1982 SC 1238; State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., AIR 1992 SC 604 : (1992 AIR SCW 237); G. Sagar Suri and Anr. v. State of U.P. and Ors., AIR 2000 SC 754; and Gorige Pentaiah v. State of A.P. and Ors., (2008) 12 SCC 531) : (AIR 2008 SC (Supp) 634 : 2008 AIR SCW 6901)."
7.7. It is next submitted by the learned counsel for the revisionist that accepting the contents of the FIR as well as entire materials available on record, basic ingredients to constitute an offence under Sections 419 and 420 IPC are lacking, hence no offence is made out against the revisionist.
7.8. Further submission is that it is well settled that the criminal prosecution for the offence under section 419 and 420 IPC can be launched only by the person, who has been cheated in the matter. Since the opposite party No. 2 has not been cheated by the revisionist in any manner, therefore, basic ingredients for committing alleged offence are clearly lacking in the present case and no offence is made out against the revisionist from all the corners. Criminal proceedings against the revisionist is clear abuse of process of the court based on mala fide intention of opposite party No. 2 in order to settle his personal score. It is submitted that criminal revision in hand is liable to be allowed with heavy cost upon the opposite party No. 2.
7.9. Summarizing the aforesaid submissions, the substratum of the argument learned counsel for the revisionist is that case of the revisionist comes under the para meters laid down by the Apex Court in State of Harayana and others vs Chaudhary Bhajan Lal and others 1992 SCC (Cri) 426, wherein seven criteria have been laid down by the Apex Court for quashing the entire proceedings in exercise of powers under Section 482 Cr.P.C. by this Court, which reads as under:
"(a) where the allegations made in the First Information Report or 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 a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or '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 accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7.10. The above guidelines laid down in case of Chaudhary Bhajan Lal (supdra) has further reiterated by the Apex Court in the case of Sundar Babu & others vs State of Tamil Nadu, 2009 (14) SCC 244.
8. Per contra, learned Additional Government Advocates for the State of U.P. and counsel for opposite party No. 2/informant opposed the criminal revision by contending that revisionist by committing fraud succeeded in getting his appointment on the basis of forged Shashtri degree, but conceded on the point that opposite party No. 2 is not aggrieved person in any manner, either by the appointment of the revisionist or by the Shashtri degree dated 26.09.1987 of the revisionist. The counsel for the informant also conceded on the point that the impugned FIR dated 04.09.2015 has been lodged by the opposite party No. 2 after 28 years of issuance of Shashtri degree to the revisionist, despite knowing the fact that his similar complaint dated 01.05.2015 has already been enquired by the departmental authorities concerned and all the allegations levelled by the opposite party No. 2 have been found false. The said enquiry report dated 28.8.2015 has not been challenged by opposite party No. 2. At long last, learned counsel for opposite party No. 2 humbly submitted that the opposite party No. 2 is practicing advocate in district court, Varanasi, and in future not initiate such kind of criminal proceedings against the revisionist, therefore, lenient view may be taken against the opposite party No. 2, otherwise his legal profession will be adversely affected.
9. In this case at the time of filing the criminal revision on 21.4.2016 interim stay order was granted by the coordinate Bench of this Court directing that till the next date of listing further proceedings of Case No.1632 of 2016 (State Vs. Sunil Kumar Singh) arising out of Case Crime No.302 of 2015, under sections 419, 420 I.P.C., Police Station Cholapur, District Varanasi shall be kept in abeyance. The Investigating Officer has submitted counter affidavit on behalf of the State of U.P., to which rejoinder affidavit dated 22.05.2016 has been filed by the revisionist. The informant-opposite party No. 2 has also filed counter affidavit dated 13.07.2016, to which reply has been given by the revisionist through rejoinder affidavit dated 17.07.2016.
10. Here it would be apposite to mention relevant parts of the pleadings, which are as follows:-
10.1. The revisionist in paragraphs No. 7 and 8 of the affidavit filed in support of the revision mentioned that on the complaint dated 1.5.2015 of opposite party No. 2, the District Inspector of Schools, Varanasi passed an order dated 25.6.2015 to enquire about the allegations levelled against the revisionist. Pursuant thereto after a detailed enquiry, an enquiry report dated 28.8.2015 was submitted by the authority concerned with categorical finding that there was no concealment of facts or misrepresentation on the part of the revisionist pertaining to appointment and study of the revisionist. The said enquiry report dated 28.8.2015 has become final because opposite party No. 2 did not make any objection either before the District Inspector of Schools, Varanasi or before any higher educational authority. The State of U.P in counter affidavit dated 25.5.2016 has not given specific reply with regard to above factual position of the complaint dated 1.5.2015 of opposite party No. 2 and enquiry report dated 28.8.2015 as stated by the revisionist. Opposite party No. 2 has submitted reply of the aforesaid contentions of the revisionist in paragraph No. 5 of his counter affidavit dated 13.7.2016 by contending that revisionist was playing fraud with the Institution by way of forgery in the Acharya Degree, but did not give specific reply with regard to enquiry report dated 28.8.2015 as stated by the revisionist.
10.2. The revisionist in paragraph No.9 of the affidavit has specifically stated that the impugned first information report dated 4.9.2015 has been lodged by opposite party No. 2 against the revisionist without disclosing the enquiry report dated 28.8.2015. Opposite party No. 1/State submitted reply of the aforesaid averment of the revisionist by contending that contents of paragraphs No. 9 to 11 of the affidavit are matter of record.
10.3. In paragraph Nos. 12 and 13, the revisionist has come up with the stand that opposite party No. 2 has launched malicious prosecution after 30 years without giving any explanation of such inordinate delay, therefore, revisionist should not be permitted to be harassed and to undergo the rigorous criminal trial after such a long gap. It has also been stated that opposite No. 2 is neither employer of the revisionist nor paying authority nor has any concern with the college or the society, therefore, no offence under Sections 419 and 420 IPC is made out against the revisionist. The reply of the aforesaid contentions of the revisionist has been given by opposite party No. 1/State in paragraph No. 8 of the counter affidavit dated 4.5.2016 by contending that the contents of paragraphs No. 12 to 14 of the affidavit do not call for any reply from opposite party No. 1 and suitable reply will be given by contesting opposite party No. 2. The opposite party No. 2 has given the reply of paragraphs No. 12 and 13 of the affidavit of revisionist in paragraph No. 7 of the counter affidavit dated 13.7.2016 by contending that the conduct of the revisionist is itself liable to be punished for rigorous criminal trial because he has concealed the material facts.
11. Considering the facts of the case, the stand taken by the revisionist and reply submitted by opposite parties as mentioned above, it is apparent on record that a vague reply has been submitted by the opposite parties and there is no acceptable explanation of launching prosecution by lodging F.I.R. against the revisionist after inordinate delay of 28 years.
12. Now in order to test whether offence under section 419 and 420 IPC are made out against the revisionist or not, it would be useful to examine the basic ingredients of the aforesaid offences.
Firstly, I shall deal section 419 IPC.
"419. Punishment for cheating by personation.--Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
The ingredients required to constitute offence of cheating are -
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 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; and
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 body, mind, reputation or property."
Secondly, I shall deal section 420 IPC.
"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."
Cheating is defined in Section 415 IPC and is punishable under Section 420 IPC. Section 415 is set out below:-
"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."
The essential requisites of the offence of Cheating 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."
13. In the light of allegations levelled by informant/opposite party No. 2 in the impugned FIR dated 04.09.2015, this Court find that the basic ingredients to constitute an offence under sections 419 and 420 IPC against the revisionist are lacking, because opposite party No. 2 is not a person, who has been deceived, induced or cheated by any act of the revisionist with regard to the issue involved in this case. There is no damage or harm in the body, mind, reputation or property of the informant/opposite party No. 2. As such the complainant cannot be said to be an aggrieved person in any manner.
14. The Apex Court in the case of Som Mittal vs Government of Karnataka, 2008 (3) SCC 753, has held that:
"when grave miscarriage of justice would be committed if the trial is allowed to proceed; or where the accused would be harassed unnecessarily if the trial is allowed; or when prima facie it appears to Court that the trial would likely to be ended in acquittal. Then the inherent power of the Court under section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court, or otherwise To secure the ends of justice"
15. Apex Court in the case of Chandra Pal Singh v. Maharaj Singh, AIR 1982 SC 1238 has held that a frustrated litigant should not be permitted to give vent to his frustration by cheaply invoking the jurisdiction of the Criminal Court.
16. The Apex Court in case of Ravinder Singh Vs. Sukhbir Singh & Ors, 2013 (9) SCC 245, has held as under:-
"It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person, not to be subjected to prosecution on the basis of wholly untenable complaint."
17. From perusal of impugned summoning order dated 16.03.2016, I find that the same has been passed by the Magistrate concerned in a very causal and arbitrary manner without application of mind simply by mentioning that "charge sheet received today, it is directed to register the same, FIR has been enclosed, summon be issued against the accused for 23.01.2016". In this regard, this Court feels that the manner, in which impugned summoning order dated 16.03.2016 has been passed by the Magistrate concerned cannot be approved. It is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the police report. If the Magistrate decides to initiate proceedings against the alleged offender, it must be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not to the offender. It is well settled that before issuing process, the Magistrate should show that on worth-material, at least he has formed his opinion that it is a fit case to issue process. Without applying judicial mind and without even looking to the facts of the case, mechanically issuing process only on the basis of operative portion of the charge sheet, does not amount to application of mind by the Magistrate.
18. The Apex Court in case of Dilawar Babu Kurane Vs. State of Maharashtra 2002 (2) SCC 135, has observed that in exercise of jurisdiction under Section of Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but could not make a roving enquiry into the pros and cons of the matter and weigh the evidence, as if he was conducting a trial.
19. Considering the facts of this case, it is apparent that the informant/opposite party No. 2 is not an aggrieved person and has not been deceived or cheated in any manner by the revisionist, therefore, no prima facie offence under sections 419 and 420 IPC is made out against the revisionist, bu the informant/opposite party No. 2 enmeshed the revisionist in a frivolous litigation by lodging the impugned F.I.R. dated 04.09.2015 concealing the facts that on the same allegation, a complaint dated 01.05.2015 earlier filed by him against the revisionist has already been enquired into by the authority concerned and the same was found false. In the enquiry report dated 28.08.2015, which has become final as the informant/opposite party No. 2 did not challenge the said enquiry report dated 28.08.2015. As such, informant/opposite party No. 2 has not come with clean hands and he cannot be permitted to the revisionist by enmeshing him in long drawn criminal trial only with a view to settle his personal score.
20. In view of above, this Court is of the view that criminal proceedings against the revisionist by opposite party No. 2 after 28 years is nothing but a malicious prosecution by the opposite party No. 2 and is a clear abuse of process of Court. Impugned summoning order dated 16.03.2016 is also not sustainable, as no offence under section 419 and 420 IPC is made out against the revisionist. This Court under the facts and circumstances of this case, feels that it is the solemn duty of the Court to protect apparently an innocent person, not to be subjected to such frivolous prosecution on the basis of wholly untenable allegations and complaint, if criminal proceeding is allowed to go on, the same will tantamount to causing grave mis-carriage of justice, therefore in order to secure the ends of justice, the impugned criminal proceedings against the revisionist is liable to be quashed.
21. It is very painful that now a days, it is a growing tendency in the society that some people like informant/opposite party No. 2 taking undue advantage of their position in legal profession are utilizing their energy and capability in implicating others with a view to achieve their goal, rather to protect the society, therefore, in order to maintain faith of society in judicial system, it is necessary to interdict and discourage the such peoples.
22. The Apex Court in the case of Mahavir and others vs. Union of India and another; 2018 (3) SCC 588 has also imposed cost of Rs. 50,000/-(Rupees Fifty Thousand Only) on finding that the litigation in the said case was clear abuse of the process of the court. Under the facts of this case, this Court also feels that this is a fit case to impose cost upon the informant/opposite party No. 2, in view of above decision of the Apex Court. In the light of above, a cost of Rs. 50,000/- (Fifty thousand only) is imposed upon the opposite party No. 2/informant. The said cost shall be paid by the opposite party No. 2 within a period of two months from today by way of demand draft in favour of Registrar General, Allahabad High Court. On deposit of above amount, a sum of Rs. 25,000/- shall be paid to the revisionist within two weeks and remaining amount of Rs. 25,000/- shall be transferred to High Court Legal Services Authority, Allahabad within the same period. In case of default of payment of said cost by the opposite party No. 2/informant, it is open to the revisionist to seek appropriate remedy available to him under the law.
23. Accordingly, the impugned summoning order dated 16.03.2016 passed by the Additional Chief Judicial Magistrate, court No. 1, Varanasi in Case No. 1632 of 2016 (State vs Sunil Kumar Singh) arising out of Case Crime No. 302 of 2015, under sections 419 and 420 IPC, Police Station Cholapur, District Varanasi and further proceedings pursuant thereto against the revisionist are hereby quashed.
24. Consequently, the present criminal revision stands allowed.
25. The Registrar General of this Court shall communicate this order to the opposite party No. 2 through Chief Judicial Magistrate Varanasi for compliance.
Order Date :- 17.5.2019 Sumaira