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2024 Supreme(Online)(HP) 2686
HIGH COURT OF HIMACHAL PRADESH
Rakesh Kainthla, J
ANSHUMAN KRISHNAN – Appellant
Versus
STATE OF HP AND ANOTHER – Respondent
CRMMO/513/2023
Petitioner Advocates:Rakesh Thakur Chaman Goverdhan ,Respondent Advocate: AG Dalip Kumar Sharma AG
For a conviction of cheating, fraudulent intent must be established from the outset; mere identification errors do not constitute cheating.
Headnote:(A) Penal Code, 1860 - Sections 415, 416, 419, 420, 403, and 406 - Cheating by personation - Conviction under Section 419 set aside due to lack of charge and absence of fraudulent intent - The High Court erred in convicting the appellant without establishing all ingredients of the offence of cheating - The act of wrong identification did not cause harm to the Oath Commissioner, thus failing to meet the definition of cheating. (Paras 29-39)
(B) Criminal Procedure Code, 1973 - Section 482 - Abuse of process - Criminal proceedings cannot be used as a means of harassment in civil disputes - FIR quashed as it did not disclose any cognizable offence. (Paras 33-40)
Facts of the case:
The appellant was convicted for cheating the Oath Commissioner by wrong identification, but no charge was framed regarding this act, and the necessary elements of cheating were not established.
Findings of Court:
The FIR did not disclose any criminal offence, and the proceedings were quashed to prevent abuse of the legal process.
Issues: Whether the conviction for cheating was justified without a proper charge and evidence of fraudulent intent.
Ratio Decidendi: The court emphasized that for a conviction of cheating, there must be a fraudulent intention from the outset, which was absent in this case.
Result: FIR quashed.
Mahmood, J.:
- “That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, which must be read in the light of the preceding Section 415.”
29. It was laid down by the Hon’ble Supreme Court in Ram Jas v. State of U.P. , (1970) 2 SCC 740 that there should be a fraudulent or dishonest inducement before a person can be held guilty of cheating.
It was observed:
- “3. In recording this finding and conviction, the High Court lost sight of the fact that no such charge was framed against the appellant in the trial court. As we have indicated above, the persons, who were cheated or attempted to be cheated, referred to in the charges framed against the appellant, were Madan Lal, Chunni Lal, or the office of the Relief and Rehabilitation-cum-Settlement Officer, Saharanpur. There was no charge at all relating to any cheating or attempting to cheat the Oath Commissioner. In fact, the case was never brought to Court with the intention of obtaining conviction of the appellant for any offence of cheating in respect of the Oath Commissioner. Not only was there no charge in this respect, but, in addition, the appellant, when questioned under Section 342 of the Code of Criminal Procedure after the prosecution evidence had been recorded, was not asked to explain evidence relating to such a charge of cheating the Oath Commissioner. No doubt, there was mention of the commission of forgery of affidavits; but the mention of the commission of that offence could not possibly lead the appellant to infer that he was liable to be convicted for abetting the offence of cheating the Oath Commissioner.
- Further, in recording this conviction, the High Court did not even case to examine in detail whether all the ingredients of the offence had been established by the prosecution evidence. The only finding of fact was that the appellant, who was known to the Oath Commissioner, wrongly identified some other person as Govind Ram and got the affidavit attested by the Oath Commissioner as if it was being sworn by Govind Ram. This act of wrong identification committed by the appellant cannot amount to the offence of cheating by personation. Cheating is defined in Section 415 IPC, which is as follows:
- “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 person 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’.”
- The ingredients required to constitute the offence of cheating are— (i) there should be fraudulent or dishonest inducement of a person by deceiving him;
- ( ii )( a ) the person so deceived should be induced to deliver any property to any person, 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; and ( iii ) in cases covered by ( ii )( b ), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
4. In the present case, the finding of fact recorded only shows that the Oath Commissioner was induced to attest the affidavit by the deception practised by the appellant in wrongly identifying a person as Govind Ram when he was in fact not Govind Ram. That act done by the Oath Commissioner of attesting the affidavit could not, however, possibly cause any damage or harm to the Oath Commissioner in body, mind, reputation or property. The Oath Commissioner was obviously not induced to deliver any property to anybody by
