Sakhi Gopal Dutta Vs. State of Jharkhand - Court Judgment

IN THE HIGH COURT OF JHARKHAND, RANCHI Cr. M. P. No. 200 of 2013 Sakhi Gopal Dutta ..... Petitioner(s) Versus 1.The State of Jharkhand 2. Partha Sarthi Dutta . . Opp. Party(s) CORAM: HONBLE MR. JUSTICE R. R. PRASAD For the Petitioner(s) : Mr. A.K. Sahni, Advocate. For the State : A.P.P. For the O.P. No.2 : Mr. P. P. N. Roy, Sr. Advocate. ----- 03 /21.08.2013. Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No.2. This petition has been filed for quashing of the entire criminal proceeding of Katras [East Basuria] P. S. Case No.101 of 2012 [G.R. No.1719 of 2012] including the order dated 07.11.2012, whereby and whereunder cognizance of the offences punishable under Sections 420, 467, and 468 of the Indian Penal Code has been taken against the petitioner. Before adverting to the submissions advanced on behalf of the parties, the case of the complainant needs to be taken notice of. It is the case of the complainant that the complainant entered into an agreement with the petitioner on 30.10.2009 for purchasing a piece of land measuring 55 decimals for a consideration amount of RS.7,000/- per decimal. At that time part of consideration amount to the extent of Rs.1,20,000/- was paid. As per the agreement, the total amount was to be paid within 11 months and the petitioner was to execute the sale deed in favour of the complainant. The petitioner did not execute the sale deed within the time stipulated though according to the case of the complainant, the complainant approached the petitioner at several occasions and even paid the amount in part, but the sale deed was not executed. When the complainant insisted upon the petitioner to execute the sale-deed then it was disclosed by the petitioner that some land dispute is going on. On such allegation, the complaint being C.P. Case No.598 of 2012 was registered which was sent before the concerned Police Station under Section 156(3) Cr. P. C for investigation. Upon completion of the investigation when the charge-sheet was submitted, cognizance of the offence punishable under Sections 420, 467, 468, 468 of the Indian Penal Code was taken vide order dated 07.11.2012 in Katras [East Basuria] P.S. Case No.101 of 2012 [G.R. No.1719 of 2012] which is under-challenge. Mr. Sahni, learned counsel appearing for the petitioner submits that accepting the entire allegation to be true, no offence either of forgery or cheating or criminal breach of trust is made out rather it is a simple case of breach of agreement and as such, the order taking cognizance is fit to be quashed. Learned counsel in this respect further submits that there has been absolutely no allegation of the complainant being defrauded by the petitioner in any manner nor there has been any allegation of complainant being induced fraudulently to purchase the land belonging to the petitioner and in absence of those allegations which constitute essential ingredients for the offence of cheating, one cannot be prosecuted for the offences under Sections 406, 420 of the Indian Penal Code. In this regard a decision rendered in a case of Arun Kumar Singh Vs. The State of Jharkhand and Anr. Cr. M. P. No.449 of 2010 was referred to. Further it was submitted that no allegation whatsoever is there constituting offence under Sections 467 and 468 I.P.C. Thus, it was submitted that the order taking cognizance be quashed. As against this, Mr. Roy learned Senior Counsel appearing for the opposite party No.2 submits that it is not a simple case of breach of agreement rather a clear-cut case of cheating which is made out as the petitioner at the time of agreement had suppressed the fact that a dispute over the land, in question was going-on and if the material fact has been suppressed, it in terms of the explanation to Section 415 of the Indian Penal Code, amounts to deception and not only that the petitioner after the expiry of 11 months which had been stipulated under the agreement dated 30th October, 2009 went on accepting part of the consideration amount and still refused to execute the sale deed. Thus, it can easily be gathered that the petitioner had intention right from the beginning to cheat the complainant and thereby, the court has never committed any illegality in taking cognizance of the offence punishable under Sections 406 and 420 of the Indian Penal Code. In the context of submission, one needs to take notice of the provision as contained in Section 415 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. Here in the instant case allegations seem to be there in the complaint that after the complainant entered into an agreement with the petitioner for purchasing a piece of land, part of the consideration amount was paid at that time. Subsequently after making further payment when the petitioner was asked to execute a sale deed, the petitioner did not execute the sale deed. Then at that point of time, it was disclosed that some dispute is going-on over the land, in question. This concealment in terms of explanation to Section 415 of the I.P.C. can be said to be deception and, therefore, the petitioner can be said to have deceived the complainant. Further-more, after expiry of 11 months which had been stipulated under the agreement, the petitioner went on accepting the part of the consideration amount as it was placed before this Court that 11 months got expired on 30th September, 2010. Even thereafter the petitioner did accept the part of the consideration amount on 02.12.2010, 11.02.2010 and 09.04.2011. This fact under the facts and circumstances, prima facie does indicate about the fraudulent and dishonest intention on the part of the petitioner. Under the circumstances, I do not find any illegality with the order under which cognizance of the offence has been taken under Sections 406 and 420 of the I.P.C. Going further into the matter, it be stated that the court has also taken cognizance of the offence punishable under Sections 467, 468 of the Indian Penal Code, but no allegation whatsoever seems to be there in the complaint so as to constitute offence under Sections 467 and 468 of the Indian Penal Code as the petitioner has never been alleged to have did any act of making any false document. Under the circumstances, the court seems to have committed illegality in taking cognizance of the offence under Sections 467, 468 of the I.P.C.. Therefore, that part of the order dated 07.11.2012 whereby cognizance of the offence under Sections 467 and 468 of the I.P.C. has been taken, is hereby, set aside. In the result, this petition stands allowed, but in part. (R. R. Prasad, J.) Sandeep/