(R) In the matter of an application under Section 482 Cr.P.C. ----- 1. Debal v. 1. State of Jharkhand 2. Suraj Mal Jain 3. Mohini Devi 4. Pannalal Jain
Case Details
Cr. M.P. No. 4615 of 2001(R) In the matter of an application under Section 482 Cr.P.C. ----- 1. Debal Mallik 2. Pratima Dasgupta ...... ........ Petitioners Versus 1. State of Jharkhand 2. Suraj Mal Jain 3. Mohini Devi 4. Pannalal Jain 5. Devendra Lal Jain 6. Rupendra Lal Jain 7. Smt. Indu jain 8. Manju Jain 9. Nutan Jain …… …… ----- Opp. Parties For the Petitioners For the State For the O.P. No. 2-9
Legal Reasoning
: Mr. R. S. Mazumdar, Sr. Advocate : Mr. APP : Mr. T.R. Bajaj, Sr. Advocate ----- PRESENT HON’BLE MR. JUSTICE R.R. PRASAD ----- JUDGEMENT By Court : This application is directed against the order dated 10.04.2000 passed in Criminal Revision No. 63 of 1993, whereby and whereunder the revisional court, having set aside the order dated 12.01.1993 passed in Complaint Case No.377 of 1991, remanded the matter before the court concerned, for passing a fresh order on the point of cognizance, in accordance with law. It is the case of the complainant that the complainant did approach to one Ashok Chandra Mallik, one of the executors and trustees of 'Gibraltar House' at Hazaribagh, Bihar (Now Jharkhand) and negotiated to purchase trust property. Ashok Chandra Mallik agreed to sell out the properties and thereupon, he realized heavy amount from the complainant and other persons, which amount was handed over to one of the accused Ashok Kumar Sinha to be given to Ashok Chandra Mallik and other trustees of Gibralter House, Hazaribagh. The aforesaid amount had been given by the complainant when it had been said that they will execute the sale deed but the accused person never executed the sale deed, though several requests were made by them. On said allegation, a complaint case was registered as Complaint Case No. 377 of 1991. After holding inquiry, the court passed an order on 12.01.1993, whereby it was held that no criminal case is made out against the petitioners, rather it is a case of civil remedy. That order was challenged before the revisional court, which was set aside and the revision application was allowed, for the reason stated herein below:- “In the case in hand as I have referred above some circumstances there is sufficient material on its face available to show that the accused persons had dishonest intention reflected by their conduct through out right from the time money was advanced to them till now not to execute the sale deed in favour of the intending purchasers nor to refund back their money as there has been shown nothing in this revision on behalf of the accused persons that they have done something in this regard even till today when it is 9 years late. In this background in my opinion it is absolutely incorrect for the court below to observe that the matter is absolutely of civil nature and there can lie no criminal prosecution for the accused persons.
Decision
I therefore, find that the impugned order is not a good one, it has got no merit and, therefore, not fit to be sustained. Accordingly, I set it aside with direction that the learned court below will make further inquiry into the matter and will pass necessary order on the petition for complainant in accordance with law. The criminal revision is allowed.” Mr. Mazumdar, learned senior counsel appearing for the petitioners submits that the petitioners had never demanded any money from the complainant or by any other persons, rather the petitioners have been made accused on the allegation that they had promised to the complainant that they would help the complainant in getting the sale deed executed and if the petitioners have failed to keep the promise, the petitioners had not committed any criminal offence and, therefore, revisional court, did commit illegality in setting aside the order, under which it had been held that no criminal offence is made out against the petitioners. Learned Magistrate while passing the order, was quite justified in holding, in the facts and circumstances of the case, that it is the case of civil remedy. It appears that after the death of the complainant, his son has been substituted, whose case appears to be that, in spite of, money be given to Ashok Kumar Mallik to be paid to Ashok Kumar Sinha, on the promise being made that the sale deed would be executed the sale deed was not executed and amount given was misappropriated and, therefore, the accused persons have certainly committed the offence and thereby the revisional court has not committed any illegality in passing the impugned order. The question which does arise as to whether the allegation made in the complaint do constitute offence of cheating and misappropriation? The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows:- “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 persons 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'”. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating :- “(1) there should be fraudulent or dishonest inducement by the person alleged to have deceived the complainant. (2)(a) the person so deceived should be induced to deliver any property to any persons, 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.” Thus, the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. After deception has been practiced the persons deceived should get induced to do or omit to do something. Then, the question does arise as to what is the deception? In the ordinary sense, deception has in it, the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the principle constituting a criminal offence of cheating in context of the allegation, it does appear that first element of deception constituting an offence of cheating is lacking, as nowhere the allegations made in the complaint do indicate about the complainant being deceived by the petitioners in any manner. At this stage, it would be appropriate to refer a case of Iridium India Telecom Limited vs. Motorola Incorporated and others [(2011) 1 SCC 74] whereby the Hon’ble Supreme Court taking notice of Section 415 of the Indian Penal Code has been pleased to hold that deception is a necessary ingredient for the offence of cheating under both parts of the Section. As I have already observed that necessary ingredients are lacking constituting offence either of cheating or criminal breach of trust, it be recorded that no offence of cheating of criminal breach of trust is made out even if the entire allegations made in the complaint are taken to be true. Accordingly, the order dated 10.04.2000 passed by the revisional court is hereby quashed. In the result, this application stands allowed. (R.R. Prasad, J) Jharkhand High Court, Ranchi Dated the 19.03.2013 NAFR/Rakesh