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Hatiram Naik Vs. Surendra Kumar Mallik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1986CriLJ1271
AppellantHatiram Naik
RespondentSurendra Kumar Mallik
Cases Referred(Anil Kumar Bose v. State of Bihar)). For
Excerpt:
.....by the magistrate taken on their face value do not make out the offence under section 415, penal code, and necessarily, therefore, the order taking cognisance of the offence under section 420, penal code, is invalid and should be quashed by this court in exercise of its inherent jurisdiction. the learned counsel for the opposite party-complainant, however, submits that the allegations in the complaint petition as well as the initial statement recorded by the magistrate taken together clearly establish the offence under section 420, penal code, and cognisance having been taken thereon, the extraordinary power of this court under section 482, cr. state 1983 cut lr (cri) 303, where the learned judge relied on a large number of earlier decisions of this court as well as the supreme..........magistrate by the impugned order dated 31-3-1983 took cognizance of the offence under section 420, penal code, and directed for issuance of summons against the petitioner. the petitioner in this revision challenges the said order of taking cognizance and has prayed for quashing the entire proceeding.'2. the case of the opposite party as unfolded in the complaint petition is that on 1-12-1982 when the accused was moving in the bus stand, he met the complainant and they talked with each other since both of them were known to each other for a long time. in course of the said talk, the complainant enquired from the accused as to whether good rice is available in the weekly market at dharamgarh, to which the accused replied in the affirmative. the complainant then wanted to purchase rice.....
Judgment:
ORDER

G.B. Patnaik, J.

1. This petition has been filed invoking the inherent jurisdiction of this Court under Section 482, Cr. P.C. to quash the proceeding initiated against the petitioner in ICC Case No. 4 of 1983 in the Court of the Chief Judicial Magistrate, Kalahandi at Bhawani-patna. On a complaint petition filed by the opposite party against the petitioner, the learned Chief Judicial Magistrate by the impugned order dated 31-3-1983 took cognizance of the offence under Section 420, Penal Code, and directed for issuance of summons against the petitioner. The petitioner in this revision challenges the said order of taking cognizance and has prayed for quashing the entire proceeding.'

2. The case of the opposite party as unfolded in the complaint petition is that on 1-12-1982 when the accused was moving in the bus stand, he met the complainant and they talked with each other since both of them were known to each other for a long time. In course of the said talk, the complainant enquired from the accused as to whether good rice is available in the weekly market at Dharamgarh, to which the accused replied in the affirmative. The complainant then wanted to purchase rice worth Rs. 400/- for his domestic consumption and the accused told him that if money was paid he would purchase the same from the market and keep it with him. The complainant thereafter handed over Rs. 400/- to the accused and told him that he would go and fetch the rice from the accused at Dharamgarh. Thereafter on several occasions the complainant went to the accused but the accused concealed himself. Lastly, on 22-3-1983, the complainant met the accused at Dharamgarh and when the complainant asked the accused about his money, the accused avoided and ran away saying that he had much work and would meet the complainant later oh. On these allegations, a prayer was made that cognizance may be taken of the offence under Section 420, Penal Code. The learned Magistrate thereafter took the initial statement of the complainant wherein the complainant merely corroborated what he had stated in the complaint petition and the learned Magistrate then took cognizance of the offence under Section 420, Penal Code, by his order dated 31-3-1983.

3. Mr. Misra for the petitioner contends that all the allegations made in the complaint petition as well as the initial statement of the complainant recorded by the Magistrate taken on their face value do not make out the offence under Section 415, Penal Code, and necessarily, therefore, the order taking cognisance of the offence under Section 420, Penal Code, is invalid and should be quashed by this Court in exercise of its inherent jurisdiction. The learned Counsel for the opposite party-complainant, however, submits that the allegations in the complaint petition as well as the initial statement recorded by the Magistrate taken together clearly establish the offence under Section 420, Penal Code, and cognisance having been taken thereon, the extraordinary power of this Court under Section 482, Cr. P.C., should not be invoked to quash the same.

4. It is undisputed that the inherent power of this Court should be sparingly exercised and only when the Court comes to the conclusion that there has been abuse of the process of law, or there has been gross miscarriage of justice. There have been large number of authorities on this point, but it is sufficient to note the decision of this Court in the case of Satrughana Dalabehera v. State 1983 Cut LR (Cri) 303, where the learned Judge relied on a large number of earlier decisions of this Court as well as the Supreme Court on the point. There cannot be any dispute that when the High Court comes to the conclusion that taking all the allegations made in the complaint petition as they are without adding or subtracting anything that the offence in question is not made out, then the High Court would be justified in exercising its inherent jurisdiction to quash the order of cognisance as well as the proceeding itself. : 1983CriLJ159 (Municipal Corporation of Delhi v. Ram Kishan Rohatgi)). In this view of the matter, the question for consideration is to find out whether all the allegations made in the complaint petition taken together with the initial statement of the complainant make out the offence of cheating. In a recent decision of this Court in the case of Profulla Mohanty v. Ashok Kumar Das 1983 Cut LR (Cri) 274 : 1983 Cri LJ NOC 210, my learned brother Dr. B. N. Misra, J. has analysed this point and quoted with approval the observations made in the earlier decision of this Court in the case of Lord Match Industries v. M.S. Selvasekaran (1983) 55 Cut LT 24. The said observations run thus :

The distinction between mere breach of contract and cheating would depend upon the intention of the accused at the time of the alleged inducement which may be judged by his subsequent act, but of which the subsequent act is not the sole criterion. Mere breach of a contract cannot give rise to a criminal prosecution. Where a charge of cheating rests upon a representation, which is impugned as false and which relates not to an existing fact but to a future event, it has to be shown that the representation was false to the knowledge of the accused at the time when it was made...

The essential requirements to attract Section 420, Penal Code, are (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) the mens rea of the accused at the time of making the inducement. (See : AIR1963SC666 (Tulsi Ram v. State of Uttar Pradesh) and 1974 SCC (Cri) 652 : 1974 Cri LJ 1026 (Anil Kumar Bose v. State of Bihar)). For the offence of cheating there must be a deception which should precede the fraudulent or dishonest inducement and it must be established that the intention of the accused was dishonest at the time of making the promise. Applying the tests to the present case, I find that the entire transaction emanated from the complainant and not from the accused. It was the complainant who enquired from the accused as to whether rice was available or not to which the accused replied affirmatively. Thereafter the complainant expressed his intention to purchase some rice to which the accused agreed to oblige if money was paid to him and then the complainant paid Rs. 400/-. In this setting, it cannot be said that the accused induced the complainant to part with the money, nor can it be said that the accused had the necessary mens rea to deceive the complainant when he agreed to oblige the complainant to purchase the rice in question at Dharamgarh. In my opinion, therefore, no offence under Section 420, Penal Code, has been made out and consequently, the order of the learned Magistrate taking cognisance on 31-3-1983 is bad in law.

5. In the result, therefore, I quash the order of the learned Chief Judicial Magistrate dated 31-3-1983 and quash the entire criminal proceeding in ICC Case No. 4 of 1983 pending before him. This Criminal Revision is accordingly allowed.


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