An illegal contract, not supported by evidence, cannot sustain criminal prosecution; charges under IPC for cheating were found baseless.

JUDGMENT :

PURNENDU SINGH, J.

Heard Mr. Satyendra Rai, learned counsel appearing on behalf of the petitioner and Mr. Kanhaiya Kishore, learned APP for the State.

2. The present application has been filed under Section 482 of the Cr.P.C. for quashing of the order dated 19.12.2014 passed by the learned Judicial Magistrate First Class, Gopalganj in Complaint Case No. 1942(C) of 2013 (Trial No. 551 of 2016), whereby the learned Magistrate has taken cognizance against the petitioner under Sections 417, 418 and403 of the Indian Penal Code.

3. As per the allegation made in the complaint, the petitioner along with other co-accused had taken money from the complainant and other persons on the pretext of providing them B.Ed certificate, but the accused persons including the petitioner cheated the complainant and other persons and also not returned their money.

4. Learned counsel appearing on behalf of the petitioner submitted that the petitioner is innocent and he has committed no offence as alleged. He further submits that the very intent of the complainant is vested with malafide who had tried to procure B.Ed degree by committing forgery in connivance with one co- accused Lal Prakash Tiwary. Learned counsel has claimed that the petitioner who was a teacher in government school has now retired from service. He submitted that frivolous accusation has been made against the petitioner with an oblique motive. No prosecution can sustain on the basis of a void contract which was entered into between the co- accused namely Lal Prakash Tiwary and the complainant. Learned counsel submits that the complainant has neither furnished any proof to corroborate with the facts of the case nor the source of the amount stated in the complaint has been verified at all. The complainant has also not provided any evidence of payment in any way. It has also been submitted that the complainant has failed to prove any communication with the petitioner and there is not even a single communication between the petitioner and the complainant in any form i.e. call, messages, Whatsapp, emails, etc. It has further been submitted by learned counsel for the petitioner that the case of the complainant is totally false and frivolous, as the very recital in the complaint case, would reveal that the same is highly improbable and thus clearly for an oblique reasons best known to the complainant. On the face of the allegations made by the complainant, no offence under Sections 417, 418 and 403 of the Indian Penal Code is made out against the petitioner.

5. It has further been argued by learned counsel for the petitioner that Section 419 of the Indian Penal Code prescribes punishment for the offence of cheating by personation. The essential ingredients to frame the charge under Section 419 IPC, first and foremost, it is required to be proved that the accused induced someone to deliver any property and secondly, the accused did so dishonestly by impersonating himself as someone else. In the present case, the complainant nowhere stated that due to impersonation of the petitioner, complainant was induced to grant gratification to procure B.Ed certificate and it is also not stated that such gratification for procurement of B.Ed certificate would not have granted in case the petitioner did not impersonate himself. Since there is nothing in the evidence to show that the complainant was induced by the petitioner, the petitioner could not be held guilty for cheating by impersonating the complainant.

6. It has also been argued that a bare perusal of the complaint reveals that procuring B.Ed certificate by money is out-rightly illegal. It has been submitted that even if two persons