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Jagdish NaraIn Vs. Shyam Sunder and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Cr. Revision No. 383 of 1983
Judge
Reported in1984WLN765
AppellantJagdish Narain
RespondentShyam Sunder and ors.
DispositionPetition dismissed
Cases ReferredState of Bombay v. Rusy Mistry
Excerpt:
.....will amount to allowing the non-petitioners to defend at the stage of issuance of the process. the learned counsel for the petitioner has invited my attention to the head note 'h' and submitted that where the failure to meet payment of the cheque is not accidental the person issuing the cheques would be presumed to have been aware that the cheques would be dishonoured and the drawer can be rightly convicted under section 420. there is no controversy in the instant case at this stage. 10. as far as the other ingredient, namely, to make alter or destroy the whole or any part of the valuable security, is concerned, there is no allegation in the complaint as well as in the statement of the witnesses the learned counsel for the petitioner submits that cheque is a valuable security. 11. so far..........is necessary for the purpose of taking cognizance against the accused under section 420, ipc. the learned counsel for the petitioner with all his vehemence at his command, has argued that a case has been made out and the revisional court has committed an error of law in setting aside the order of cognizance. he has referred, the case of bholanath v. the state (1982 cr. lj 1482). the total value of the goods delivered, in that case, to the petitioner on 9th may, 1976 came to rs. 1,44,252.36, out of which a sum of rs. 27,000/- was paid by the petitioner by means of demand draft and for the balance amount fours cheques of 15-2-8976, 24-6-1976, 19-7-1976 and 14-8-1976 were issued. the said cheques were presented to the bank but the petitioner, by the same were returned unpaid with the.....
Judgment:

D.L. Mehta, J.

1. An amount of Rs. 32,000/- plus an amount of interest was due against the non-petitioner, Om Prakash and his brothers. It is an admitted position that on 1st August, 1982, no transaction has taken place. Neither any article was sold to the non-petitioners on credit, nor any property was received by the present non-petitioners on 1st August, 1982. The allegation against the petitioner is that on 1st August, 1982, he came to Gangapur City to purchase some goods from other parties. The petitioner's bank and creditors were not in know of the fact that the petitioner has come to purchase the goods from other party. So they contacted him in Gangapur City and demanded the amount due from him. The further allegation is that Om Prakash, non-petitioner, issued a cheque for Rs. 5000/- towards the outstanding amount in favour of the petitioner. The cheque was dishonoured by the Bank.

2. The contention of the petitioner is that no amount was in the account of the non-petitioner. Om Prakash and the non-petitioner fraudulently and with a dishonest intention issued the cheque in favour of the petitioners to cheat them. A complaint was filed before the learned Magistrate, Gangapur City, who took cognizance against the non-petitioner. A revision petition was preferred before the learned Sessions Judge who accepted the revision petition and set aside the order dated 4th January, 1983, passed by the learned Magistrate. The learned Sessions Judge came to the conclusion that no case of cheating is made out by the petitioners. He was of the view that it is a civil dispute and Section 45 read with Section 420, IPC does not apply in the instant case. Being aggrieved with the Older passed by the learned Sessions Judge, in revision, the petitioners have preferred this petition Under Section 482, Cr. PC, 1973.

3. Mr. Gupta, appearing on behalf of the petitioners, has referred the case of State of UP v. Rahmatullah : 1971CriLJ1103 and Tejmal Madan v. Motilal Sankhla (1981 Cr. LR (Raj) 431). The proposition laid down in both the cases is not in dispute at all. For determining the question whether any process should be issued to the accused, or not, the Magistrate has to be satisfied as to whether there is sufficient evidence for proceeding or not. If there is a prima facie case, even then the accused may have a defence which may be inquired into at the stage of trial. The matter should be left to be decided at the appropriate stage and the issuance of process cannot be disputed merely on the ground that the accused had a defence. The process is issued only for the determination whether the complainant has succeeded in making out a prima facie case, or not. At the same time, it is to be kept in mind that the complaint must narrate the facts constituting the offence and, if the facts have not been narrated in the complaint constituting an offence and any of the ingredients of the offence is missing, this Court should not interfere and should not issue a process.

4. Now, the question before me is a question which is to be determined on the basis of the admitted position by the complainant as stated in the complaint and further proved by his statement in the Court. The contention of the non-petitioners that the petitioner has failed to prove that there was sufficient amount on 1st August, 1982 in the Bank cannot be accepted at this stage as it will amount to allowing the non-petitioners to defend at the stage of issuance of the process.

5. Section 415, IPC defines 'cheating' and Section 420, IPC deals with the cases where there is cheating and accused party has dishonestly used the part of the property. Section 420 IPC reads as under:

420. Cheating and dishonestly inducing delivery of property-- Whoever cheats and thereby dishonestly induces the person deceived to deliver, any property or 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 also be liable to fine.

6. The necessary ingredients of this Section are:

(1) Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person;

(2) or to make, alter or destroy the whole or any part of a valuable security;

(3) or anything which is signed or sealed and which is capable of being converted into a valuable security.

7. All or any of the three ingredients is necessary for the purpose of taking cognizance against the accused Under Section 420, IPC. The learned Counsel for the petitioner with all his vehemence at his command, has argued that a case has been made out and the revisional Court has committed an error of law in setting aside the order of cognizance. He has referred, the case of Bholanath v. The State (1982 Cr. LJ 1482). The total value of the goods delivered, in that case, to the petitioner on 9th May, 1976 came to Rs. 1,44,252.36, out of which a sum of Rs. 27,000/- was paid by the petitioner by means of demand draft and for the balance amount fours cheques of 15-2-8976, 24-6-1976, 19-7-1976 and 14-8-1976 were issued. The said cheques were presented to the bank but the petitioner, by the same were returned unpaid with the endorsement 'referred to drawer' and a note appended for the two cheques. Counsel for the petitioner has invited, my attention to para 9 of the said judgment and has submitted that this case applies with full force. I do not find any force in the submissions made by the learned Counsel for the petitioners. This case doss not apply to the facts of the present case. In the case referred to above, the property was delivered on 9 5-1976 on credit and the cheques were given on 9-5-1976 and all the cheques were out-dated and the petitioner and the accused persons in that case induced the seller to part with the property and under that inducement the seller accepted the cheques and parties with the property. But here it is not so. The petitioner has not parted with any of the property on 1st, August 1982. The amount was outstanding He wanted to recover the cost of goods supplied in past and he went to accused Om Prakash and Om Prakash issued the cheques. Thus, the ingredient of whoever dishonesty induces the person deceived to deliver any property is missing in the instant case.

8. The learned Counsel for the petitioner has cited before me the case of Keshavji v. Emperor AIR 1930 Bom 179. The cheques were issued and dishonoured in the instant case. In the case of Keshavji (supra) he had a dealing with the accused firm and a considerable amount paid upto 9-9-1983 and of which debt account was closed and nothing remained due to the accused. On 18-9-1928 accused No 1 came to the complainant and said that he required a loan of Rs. 500/- which will be repaid on the following day, that is, 19th September accused 2 and 3 came to the complainant Accused 2 asked the complainant to give him a cheque for Rs. 1,500/- of that date, 10th September against a cheque of the accused's firm for the aggregate amount of Rs. 2,000/- bearing date 20th September. Thus, the complainant party had issued a cheque in favour of the accused party in consideration of their cheque parted with the property and this case does not apply. Mr. Gupta has cited Kanwar Sen v. Emperor AIR 1933 Oudh 86. The facts of the case are not available in the ruling. The learned Counsel for the petitioner has invited my attention to the Head Note 'H' and submitted that where the failure to meet payment of the cheque is not accidental the person issuing the cheques would be presumed to have been aware that the cheques would be dishonoured and the drawer can be rightly convicted under Section 420. There is no controversy in the instant case at this stage. The question involved in this case is, whether the first ingredient, that is, the person dishonestly induces the person deceived to deliver any property to any person is made out from the complaint or the evidence. It is an admitted position that the person so received, namely the complainant, has not delivered the property to the accused party on the relevant date and for this reason, the case cited by the learned Counsel for the petitioner does not apply to the facts of the present case.

9. The learned Counsel for the non-petitioner has cited before me the case of Duryodhan v. Ali Ahmed (1971 Cr. L.J. 1997), in which their Lordships held that to constitute an offence under the Section there must be deception which precedes the fraudulent or dishonest inducement of the person deceived to part with the property. Parting with the property by the complainant is an essential ingredient of the offence so far as the first ingredient is concerned. The learned Counsel for the petitioner has cited State of Bombay v. Rusy Mistry : AIR1960SC391 . I do not see how the alleged previous acts of transaction by the accused whereby the complainant might have lost the amount have any relevancy for the charge with which the accused is charged in the present case.

10. As far as the other ingredient, namely, to make alter or destroy the whole or any part of the valuable security, is concerned, there is no allegation in the complaint as well as in the statement of the witnesses The learned Counsel for the petitioner submits that cheque is a valuable security. It may or may not be valuable security; but in the instant case, the cheque has been paid towards the payment of past debts and the person receiving the cheques knows that even if it is dishonoured he will have no remedy except the right to move the civil court. Patting with the property is a must. There is no allegation that any valuable security has been altered or destroyed or altered. If there is alteration or destruction of cheque so issued it will fall within the definition of cheating.

11. So far as the third ingredient is concerned, namely, anything which is signed or sealed and which is capable of being converted into a valuable security, there is no allegation in the complaint as well as in the evidence. Thus, after the perusal of the complaint as well as the submission made by the learned Counsel for the parties, I am satisfied that the facts constituting the offence have not been stated in the complaint itself and there is nothing on the record or in the evidence to show that the complainant has succeeded in proving that the facts constituting the offence have been placed on record.

12. For the reasons mentioned above, I do not find any force in the revision petition. The revision petition is dismissed accordingly.


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