Allahabad High Court
Tarun Bhagoliwal vs State Of U.P. & Another on 19 February, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 4 Case :- U/S 482/378/407 No. - 1606 of 2011 Applicant :- Tarun Bhagoliwal Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Arun Sinha,Pranshu Agarwal,Vijai Krishna Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Sri Arun Sinha, Advocate for the applicants is present. None appeared on behalf of opposite party 2 though the case has been called in revise. Hence I proceed to decide the application after hearing learned counsel for applicant and learned A.G.A.
2. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash charge sheet no.527/09 dated 09.10.2009 as well as summoning order dated 23.12.2009, in Case Crime No.598 of 2008, Police Station Hazratganj, District Lucknow, whereby applicant has been summoned to face trial under Sections 420 IPC.
3. It is contended that even if allegations made in complaint are taken to be correct, yet no offence under Section 420 IPC is made out.
4. The FIR filed by Informant-opposite party 2 reads as under :
^^fjiksVZ Fkkuk gtjrxat y[kuÅ lsok esa Jheku {ks=kf/kdkjh egksn; gtjrxat {ks= y[kuÅ fo"k;%& ckor eSllZ bUnz/kuq"k&ch&1@12 lsDVj ch] vyhxat ¼y[kuŽ }kjk mi lfpo xksiu vuqHkkx&8 m0iz0 'kklu y[kuÅ dks jftLVMZ fyQkQk esa ek= nks lkns isij j[kdj Ny diV ,oa /kks[kk/kM+h fd;s tkus ds lEcU/k esa tkap vk[;k egksn;] fuosnu gS fd mijksDr izdj.k dh tkap eq> mifujh{kd }kjk dh x;h rks ;g rF; lkeus vk;k fd eSllZ bUnz/kuq"k mijksDr ds izksijkbVj Jh r:.k HkxkSyhoky }kjk Jh uohu pUnz f-=ikBh] mi lfpo] xksiu vuqHkkx&8 m0iz0 'kklu y[kuÅ dks lEcksf/kr ,d [kkdh jax dk jftLVMZ fyQkQk ftlesaa la[;k i& 1056@25807&17¼35½@2006 jftLVªh A.D. lfgr lEcksf/kr Jh uohu pUnz f=ikBh mi lfpo mijksDr dks jftLVMZ Mkd ds ek/;e ls fnukad 16-05--2007 dks izsf"kr fd;k x;k Fkk mDr fyQkQk fnukad 17-05-2007 dks xksiu foHkkx&8 m0iz0 'kklu y[kuÅ ds dk;kZy; dks izkIr gqvk ftldks Jherh uhyw vxzoky jftLVj dhij xksiu vuqHkkx&8 }kjk [kksyk x;k fyQkQk [kksyus ij nks lkns isij izkIr gq, ftldks xksiu vuqHkkx&8 esa fu;qDr Jh Vh0,l0 lsaxj foHkkx vf/kdkjh xksiu&8 o Jh lR; izdk'k leh{kk vf/kdkjh xksiu&8 }kjk Hkh ns[kus ds i'pkr mDr fyQkQk ij viuh fVIifM+;ka vafdr dh xbZA iz'uxr izdj.k esa iwaN rkaN o tkap ls eSllZ bUnz/kuq"k ds izksijkbVj Jh r:.k HkxkSyh oky }kjk mDr fyQkQk 'kklu esa Hksts tkus dh iqf"V gks jgh gSA mYys[kuh; gS fd mDr ekeys esa ;g Hkh rF; izdk'k esa vk;k dh eSllZ bUnz/kuq"k ds izksijkbVj Jh r:.k HkxkSyhoky ds fo:) jsyos foHkkx esa lewg ?k ds in ij HkrhZ fd;s tkus ds fy, vH;fFkZ;ksa ds izos'k i=@fjtsDlu uksfVl vkfn dks lafonk ij Hkstus ij ds fy, fyQkQksa ij Mkd fVdV yxkus] Òstus es dh xbZ tky lkth /kksdk /kM+h ,oa xEHkhj vfu;ferrk dk eqdnek Fkkuk egkuxj y[kuÅ eq0v0la0 66@2006 ntZ fd;k x;k gS ftlesa vkfFkZd vijk/k vuqla/kku laxBu m0iz0 }kjk foospuk ,oa dk;Zokgh dh xbZ gSA rnuqlkj eSllZ bUnz/kuq"k dks CySd fyLV djus ds fy, Jh uohu pUnz f=ikBh mi lfpo m0iz0 'kklu y[kuÅ }kjk viuh i= la[;k 999@25&8@2006&17¼35½@2006 fnukad 12-9-2006 ds }kjk ps;j eSu jsyos cksMZ Hkkjr ljdkj ubZ fnYyh o lfpo fuokZpu vk;ksx m0iz0 'kklu y[kuÅ rFkk i= la[;k &1000@25&8&2006&17¼35½@2006 fnukad 12-9-2006 ds }kjk lfpo foRr ea=ky; Hkkjr ljdkj ubZ fnYyh dks i= fy[kk x;k gSA dnkfpr blh dkj.k ;g jftLVMZ 'kklu dks ek= Ny diV@/kks[kk/kM+h vFkok Hkzfer djus ds vk'k; ls eSllZ bUnz/kuq"k ds izksijkbVj }kjk Hkstk x;k gS mDr QeZ }kjk bl izdkj ls 'kklu dks Hkzfer dj vius dkj; dks djk;s tkus dh vk'kadk trkrk gSA vr% izdj.k dh lewph tkap ls izFke n`"V;k bUnz/kuq"k ds izksijkbVj r:.k HkxkSyh oky }kjk dfri; vuqfpr ykHk izkIr djus o 'kklu }kjk dh tk jgh muds fo:) dk;Zokgh ls vius cpko esa 'kklu dks Hkzfer djus ,oa /kks[kk/kM+h o Ny diV fd, tkus lanfHkZr jftLVMZ fyQkQk esa nks lkns dkxt Mkd foHkkx ds ek/;e ls izsf"kr fd;k tkuk izekf.kr gks jgk gS tks iw.kZ :i ls /kks[kk/kM+h dh gn esa vkrk gSA vr% lEiw.kZ ekeys dh tkap ls izFke n`"V;k /kks[kk/kM+h dk vijk/k izekf.kr gksrk gSA vk[;k lsok esa iszf"kr gSA^^ "Report Police Station - Hazratganj, Lucknow. To, The Circle Officer, Hazratganj Circle, Lucknow, Subject :- Regarding Investigation against committing cheating and fraud by M/s Indradhanush-B-1/12 Sector B, Aliganj (Lucknow) by keeping only two blank papers in a Registered envelop and sending it to Deputy Secretary, Confidential Section-8, Government of U.P. Sir, it is submitted that the aforesaid matter has been investigated by me- the Sub Inspector then this fact was revealed that a khaki coloured registered envelop bearing number Pa- 1056/ 25807/ 17(35)/ 2006 with Registered A.D., addressed to Shri Navin Chandra Tripathi, Deputy Secretary, Confidential Section-8, Government of U.P., Lucknow, had been posted on 16.05.2007 by Shri Tarun Bhagauliwal- the proprietor of aforesaid M/s Indradhanush. The said envelop was received at the office of Confidential Department-8, Government of U.P., Lucknow which had been opened by Shrimati Neelu Agrawal Register Keeper Confidential Section-8. On opening it two blank papers were received which had been seen by Shri T.S. Sengar Section Officer Confidential-8 posted in Confidential Section-8 and Shri Satya Prakash Review Officer Confidential-8 who marked remarks on the envelop after seeing it. After investigation and inquiry in the impugned matter, sending the said envelop by Shri Tarun Bhagauliwal- the proprietor of M/s Indradhanush to the Government is getting confirmed. It is pertinent to mention that the Department of Railway has lodged a case of forgery, cheating and serious irregularity against Shri Tarun Bhagauliwal- the proprietor of M/s Indradhanush at Police Station Mahanagar, Lucknow vide Case Crime No. 66/2006 in the matter of contract for pasting postal stamps on envelops and sending it in connection with Admit Cards / Rejection Notice etc. to the candidates of Recruitment of Group D posts in the Department of Railway wherein the investigation has been conducted and action has been taken by Economic Offences Investigation Organisation U.P. Accordingly Shri Navin Chandra Tripathi, Deputy Secretary, Confidential Section-8, Government of U.P. has wrote letters to the Chairman, Railway Board, Govt. of India, New Delhi and Secretary, Election Commission, Govt. of U.P. vide his letter No. 999/ 25-8/ 2006-17(35)/ 2006 dated 12.9.2006 ; and Secretary, Ministry of Finance, Govt. of India, New Delhi vide his letter No. 1000/ 25-8/ 2006-17(35)/ 2006 dated 12.9.2006 to blacklist M/s Indradhanush. Perhaps, due to this very reason this registered letter has been sent by the proprietor of M/s Indradhanush with only an intention to commit deception/ fraud or create confusion. It is apprehended that the said firm wants to get his work don by causing confusion before the Government. Therefore, complete investigation of the case prima-facie proves that proprietor of M/s Indradhanush - Tarun Bhagauli has committed cheating and fraud by sending referred registered envelop through Department of Posts keeping two blank papers therein for getting some undue benefits and causing confusion to the Government so that the confusion may be created for his defence in the proceeding initiated by the Government against him which exclusively falls within the ambit of fraud. Therefore the crime of fraud gets prima facie proved by the investigation of entire case. The report is submitted." (English Translation by Court)
5. Section 420 is "cheating" which is defined in Section 415 and both these provisions read as under:
"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."
"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."
6. In order to attract allegations of "cheating", following things must exist:
(i) The person deceived, delivered to someone or consented that certain person shall retain property.
(ii) Person deceived was induced by accused to do as above.
(iii) Such person acted upon such inducement and consequently was deceived by the accused.
(iv) Accused acted fraudulently or dishonestly.
(v) Accused did it intentionally.
(vi) such act or omission caused or likely to cause damage or harm to that person in body, mind, property or reputation.
(Emphasis added)
7. Then in order to attract Section 420 I.P.C., essential ingredients are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
8. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
9. In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
10. In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
11. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, 2000(4) SCC 168 Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section 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, inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
12. In S.W. Palanitkar and others Vs. State of Bihar and another, 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
13. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
"Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (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, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section 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 not fraudulent or dishonest." (Emphasis added)
14. In Devender Kumar Singla Vs. Baldev Krishan Singh 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
15. In Indian Oil Corporation Vs. NEPC India Ltd., 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
16. Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
17. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
18. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
19. Looking to allegation made in complaint and in the light of exposition of law in respect of Section 420 IPC, as discussed above, I find that in the present case there is no allegation of dishonest inducement on the part of applicants. The basic ingredients of Section 420 read with 415 IPC i.e. dishonest inducement to person so deceived to deliver any property is clearly absent.
20. Once necessary ingredient is absent, offence under the said provision cannot be made out. In R.K. Vijayasarathy and others vs. Sudha Seetharam and others 2019(3) SCALE 563, in similar circumstances, Supreme Court, in para 18 said :
"The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17 February 2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out."
(emphasis added)
21. There is nothing on the face of record to indicate that Accused-applicant dishonestly induced Informant to deliver any property to him. In the circumstances, proceedings against Accused-applicant under Section 420 IPC is illegal and gross abuse of process of law.
22. In view of discussions made hereinabove and considering the allegations contained in the complaint in the case in hand, in the light of above authorities, proceedings are liable to be quashed.
23. The application is allowed. Charge sheet no.527/09 dated 09.10.2009 as well as summoning order dated 23.12.2009, in Case No.12817 of 2009 arising out of Case Crime No.598 of 2008, under Section 420 IPC, Police Station Hazratganj, District Lucknow, pending in the Court of Chief Judicial Magistrate, Lucknow, are hereby quashed.
Order Date :- 19.2.2020 KA