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2019 Supreme(All) 511
HIGH COURT OF JUDICATURE AT ALLAHABAD BENCH AT LUCKNOW
DINESH KUMAR SINGH, J.
Indra Mani Mishra - Appellant
Versus
State of UP and Anr - Respondent
Criminal Miscellaneous Case No. 5433 of 2015
Decided On : 23-04-2019
Diwakar Pratap Pandey, Adv., Prahlad Maurya, Adv.
The central legal point established in the judgment is the duty of the Investigating Officer to register the complaint and proceed with the investigation when the ingredients of the cognizable offences are prima facie made out, emphasizing the elements of fraudulent and dishonest intention in establishing the offence of cheating.
Headnote:
Cheating - Criminal Law - Indian Penal Code, 1860, Section 415 - Indian Contract Act, 1872, Section 23 - The judgment discusses the application of Section 415 of the Indian Penal Code and Section 23 of the Indian Contract Act in a case involving allegations of cheating and breach of trust. The court emphasizes the elements of fraudulent and dishonest intention in establishing the offence of cheating and highlights the duty of the Investigating Officer to register the complaint and proceed with the investigation when the ingredients of the cognizable offences are prima facie made out.
Fact of the Case:
The petitioner/complainant alleged that the accused induced him to give Rs.eight lakhs by promising to secure a job for his son in the Excise Department as Constable. However, the job was not secured, and the money was not returned. The complaint was dismissed on the ground that the consideration paid was against the provisions of Section 23 of the Indian Contract Act, 1872.
Finding of the Court:
The court found that the offence of cheating was clearly made out, emphasizing the fraudulent and dishonest intention of the accused in making false promises and inducing the complainant to part with the money. The court held that the Magistrate and the revisional court had ignored the material facts and the ingredients of the commission of the offence, and therefore, the orders were liable to be quashed.
Issues: The issues revolved around the dismissal of the complaint on the ground that the consideration paid was against the provisions of Section 23 of the Indian Contract Act, 1872, and the failure of the lower courts to recognize the elements of the offence of cheating under Section 415 of the Indian Penal Code, 1860.
Ratio Decidendi: The court's decision was based on the finding that the offence of cheating was clearly made out, and the lower courts had erred in ignoring the material facts and the ingredients of the commission of the offence. The court emphasized the duty of the Investigating Officer to register the complaint and proceed with the investigation when the ingredients of the cognizable offences are prima facie made out.
Final Decision: The petition was allowed, and the orders passed by the lower courts were quashed. The Magistrate was directed to proceed with the case and summon the accused for the offence committed by them and then conclude the proceedings expeditiously.
DINESH KUMAR SINGH, J.
1. This petition under Section 482 Cr.P.C. has been filed for quashing of the judgment and order dated 16.9.2015 passed by the Additional Session Judge, Ambedkar Nagar in Criminal revision No.Nil of 2015, whereby the revisional court affirmed the oder dated 1.9.2015 passed by the Magistrate in Complaint Case No.0305136 of 2014 rejecting the complaint in a mechanical manner without proper appreciation of record, misinterpretation of law and without applying his mind.
2. The petitioner/complainant filed an application under Section 156(3) Cr.P.C. against the accused-respondents praying therein for registering and investigating of the offence against them. The allegations in the application are that in the month of December, 2010, the accused along with one Vinod Tripathi came to the house of the complainant and convinced him that if he can give Rs.eight lakhs, then he would speak to the Chief Minister Ms. Mayawati for appointment of his son in the Excise Department as Constable. He spoke in a convincing manner in presence of Vinod Tripathi and wife of the complainant Urmila and son Lalit Mishra. Thereafter, believing in the assurance given by the accused, the complainant gave him Rs.eight lakhs through various cheques, which were deposited by the accused in his bank account. However, neither the employment of his son was secured nor the accused returned Rs.eight lakhs to the complainant. When he demanded money, he was threatened that he would be beaten up severely and would be falsely implicated in various cases including SC/ST Act.
3. Learned Magistrate treated the application under Section 156 (3) Cr.P.C. as complaint case and recorded the statements of the complainant and the witnesses under Sections 200 and 202 Cr.P.C. However, despite recording the finding of fact that the money has been given to the accused by the complainant on his false promise that job of Constable in the Excise Department for the son of the complainant would be secured, the complaint has been dismissed on the ground that such contract/consideration is against the provisions of Section 23 of the Indian Contract Act, 1872.
4. Aggrieved by the aforesaid order dated 1.9.2015 passed by the Chief Judicial Magistrate, Ambedkar Nagar in Complaint Case No.0305136 of 2014, Revision No.Nil of 2015 was filed. The revisional court has also taken the same reasoning and dismissed the revision vide impugned order.
5. Heard Mr. Diwakar Pratap Pandey, learned counsel representing the petitioner and Ms. Parul Kant, learned AGA representing the State. However, no one has put in appearance on behalf of respondent no.2 even on revised call.
6. Learned counsel for the petitioner submits that the complaint discloses the commission of an offence of cheating and the complaint could not have been dismissed on the ground that the consideration paid was for unlawful purposes. The Magistrate was required to look into the complaint and the statement of the complainant as well as the witnesses to find out whether, prima facie, cognizable offence is made out to proceed against the accused or not.
7. To buttress the submission, learned counsel for the petitioner has placed reliance upon the judgment of the Madras High Court in the case of A. Perumal v. State Rep. by on 23 February, 2015 in Criminal O.P. (MD) No.8765 of 2014 along with connected matters, decided on 23.2.2015.
8. Ms. Parul Kant, learned AGA has also supported the contention of the petitioner.
9. I have heard the submissions of the parties carefully.
10. The Madras High Court in the case of A. perumal (supra) while dealing with the similar controversy held as under:-
"12. While analyzing the above provisions, the ingredients therein to the present case, wherein, the complaint was lodged by the complainant, alleging that they were cheated by the accused under the guise of providing the employment, this Court is of the view that a cognizable offence is made out to proceed against the accused person sin
