The main legal point established in the judgment is that to establish the offence under Section 420, IPC, the essential requirement of deceit by a person who fraudulently or dishonestly induces another person to deliver any property must be satisfied.

S P Wangdi J

[1] This Criminal Misc. Case arises out of General Register Case No. 94 of 2008, under Section 409/420 of the Indian Penal Code ('IPC for short), arising out of Gangtok Sadar Police Station Case No. 65(5)07 dated 11th May, 2007, pending before the Court of the Learned Judicial Magistrate, East Sikkim at Gangtok, wherein the petitioner has been required to appear and answer on the charges as herein stated.

[2] Mr. Subrata Kumar Roy Karmakar, the learned Counsel appearing on behalf of the petitioner, submits that a bare reading of the First Information Report read with the Charge-Sheet filed by the police, do not disclose any offence under Section 409 and Section 420, IPC, and, therefore, the proceedings pending before the Learned Judicial Magistrate requires to be quashed. In support of his submission, a large number of decisions have been cited, amongst which is the decision in the case of R. Kalyani v. Janak C. Mehta and others, 2009 1 SCC 516 where the principle of law under Section 482, Cr.P.C. 1973 as enunciated in the case of State of Haryana and others v. Bhajan Lai and others, 1992 Supp1 SCC 335 has been re-emphasised. He further submits that from the contents of the FIR it is quite obvious that the matter relates to a contractual dispute between the petitioner and the respondent No. 1, and, therefore, is purely civil in nature.

[3] Mr. Tashi Norbu Basi, the learned Counsel appearing on behalf of the respondent No. 1, submits that the conduct of the petitioner of not having paid the amounts prescribed in the Deed of Lease regularly and of him having left the place without any notice, as also the fact that he had made payment of certain sum by way of a cheque which later bounced, would clearly lead to the inference of the offence having been committed, at least prima facie, by the petitioner. Mr. Basi further submits that even if it is to be accepted that the dispute between the parties is essentially civil in nature, yet it does not debar the respondent No. 1 from instituting a criminal proceeding against the petitioner, if any offence is made out.

[4] Mr. Karma Thinlay Namgyal, the learned Additional Public Prosecutor appearing on behalf of the State - Respondent No. 2, has placed before this Court the case of Indian Oil Corporation v. NEPC India Ltd. and others, 2006 6 SCC 736 to emphasise on the point that a criminal proceeding can be initiated even if a dispute is essentially of a civil character.

[5] Heard and considered the rival submissions of the learned Counsels appearing on behalf of the parties and perused the records produced before me. The essential requirement under Section 420, IPC which is the foundational allegation against the petitioner, is deceit by a person who fraudulently or dishonestly induces another person to deliver any property. In other words, deceit is the essential ingredient that requires proof of its existence right at the inception of the transaction. We may reproduce Section 420, IPC for convenience :

"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] Section 415, IPC, as is evident, is the genus, and whereas Section 420, IPC alleged in the present case is its species and therefore, in establishing the offence under the latter provision, the ingredients of the former would necessarily have to be satisfied.

[7] I have perused the FIR which reads as under:-

"The Officer-in-charge Sadar Thana Gangtok, Sikkim. Date: 11th of May, 2007 Subject: First Information Report

Sir,

I, the undersigned, beg to lodge a F.I.R. against Shri Mintu Sing