(1) The petitioners who are accused nos. 1 and 2 in c. C. No. 2059 of 1999 on the file of the xi metropolitan magistrate, secunderabad, invoke inherent powers for quashing the proceedings.
(2) A brief resume of background of facts is necessary. The son of the 2nd respondent being the defacto complainant married laxmi reddy on 25 - 6 - 1997. The 2nd respondent's son was employed in united states of america. It is alleged that the proposal of the marriage took place on the assurance of settling the son of the 2nd respondent in business in u. S. A. It is mentioned in the charge - sheet that a sum of rs. 50,000/ - was paid to laxmi reddy for the purpose of meeting the expenses to go to madras and completing the formalities for issuing of visa. Visa is said to have been issued to laxmi reddy only on the basis of her marriage with the son of the 2nd respondent. It is further alleged that laxmi reddy went to america and did not go to the house of her husband and stayed at the house of her sister and brother - in - law. After some days she is said to have joined her husband. It is further alleged that she mentally tortured the 2nd respondent's son by writing threatening letters as well as using the telephone for making long calls. Which lead to tenth rank in the state for making long calls. It is also not disputed the fact that she applied for divorce in america. Subsequently, the american court has granted divorce. It is also an admitted fact that divorce application is also presented in the family court at hyderabad. It is not disputed that the 2nd respondent's son committed suicide subsequently. This court is not concerned with the same. What is alleged in the complaint is as follows:
"thereafter/she obtained divorce on false allegations at u. S. A. And also lodged a petition before the family courtin u. S. A. For maintenance. As a - 1, a - 3 and a - 5 in order to take a - 4 along with them to america made a conspiracy to use l. W. 2 as a source in pursuance of the conspiracy a - 1 and a - 2 approached l. W. 1 at his residence in secunderabad and got solemnized the marriage of a - 4 with l. W. 2 by inducing that they will help l. W. 2 in business. Believing their version l. W. 2aftermaniage left for america and sent the visa to a - 4 and l. W. 1 also gave rs. 50,000/ - for expenses to her".
Hence, police filed charge - sheet under secs. 406,420 and 506 ipc,and the magistrate has taken cognizance of the offence.
(3) The learned counsel appearing for the petitioners assails the order on the ground that there is no delivery of property in pursuance of the alleged cheating and the offence under sec. 420 is not attracted. It is also contended by him that the ingredients do not constitute an offence under secs. 406 and 506 ipc. In support of his case, he placed reliance in p. S. Prasad v. State of andhra pradesh. The public prosecutor v. Thall gangadharudu and others and tulsi ram and others v. The state of uttar pradesh.
(4) The learned public prosecutor contends that the magistrate has exercised his discretion to take cognizance of the offence and there is no need to quash the proceedings. He placed reliance on the decision reported in tarun k. Shah v. C. R. Alimchandm.
(5) The learned senior counsel appearing for the 2nd respondent contends that the offence certainly falls under section 417 ipc. He also contended that they could not take laxmi reddy to america and they conspired and practiced deception and use the marriage as an aid to take the girl to america. They also made the 2nd respondent deliver rs. 50,000/ -. Hence, their sole object is to take the girl to america and there is prima facie material to constitute an offence of cheating. It is also contended by him that the material placed before the court may not fall under sections 406 or 506 ipc, at this stage and they have to be relegated to trial.
(6) Adverting to the said contentions, cheating is defined under section 415 ipc, which reads as follows:
"cheating: - 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. Explanation: - a dishonest concealment of facts is a deception within the meaning of this section".
Section 417 ipc, reads as follows: -
"punishment for cheating: - whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both".
Section 420 ipc, reads as follows:
"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".
Section 406 ipc reads as follows:
"punishment forcriminal breach of trust: - whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 506 ipc reads as follows:
"punishment for criminal intimidation: - whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; if threat be to cause death or grievous hurt, etc. - and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life] or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shallbe punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
(7) If the entire averments are taken together, they do not constitute an offence under sections 406 or 506 ipc. The only thing that has to be considered by this court is whether the material is sufficient to show prima facie case to constitute an offence under section 420 ipc. The public prosecutor v. Thall gangadharudu (supra 2) learned single judge of this erstwhile court, whose decision was binding, had an occasion to deal with section 420 ipc. The relevant portion at pages 679 and 680 read as follows: "section 415 of the indian penal code enacts: 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. Explanation: - a dishonest concealment of facts is a deception within the meaning of this section. To appreciate this, it is useful to state a few facts bearing on the circumstances under which the loan was sanctioned. When the loan application with the several statements of stocks etc. , was received by the krishna co - operative central bank, it was entrusted by this bank to its supervisor (p. W. 7} for enquiry and report. He submitted a report with recitals which fully tallied with the statements in the loan application. It is no doubt true that in the witness - box he deposed that he did not really make any enquiry but relied on he figures given in the above said document sent to him and on the assurance given by a - 3. The version given by him in the witness - box does not make much difference for answering the question arising in this case. It is apparent from the evidence of p. W. 2, the secretary of the co - operative central bank ltd. , that it was the report and the recommendation of p. W. 7 that induces them to grant the loan. He categorically stated that the bank had acted on the strength of the certificate of the bank supervisor (p. W. 7) in granting the loan. It is therefore evident that it was not the alleged false representations that resulted in the sanctioning of the loan. In order to bring a case within the ambit of section 420 ipc, it is necessary that there should be a direct connection between the false representation and the delivery of the property for the doing of something by the person deceived. There can therefore be no offence of cheating committed by the respondent. The is also another essential element lacking in this case to bring it within the operation of the definition of cheating. It is necessary that the act or the omission complained to show cause or is likely to cause damage or harm to the person in body, mind, reputation or property. It is not even suggested that the application for the loan with false particulars was likely to cause any damage to the property of the co - operative central bank. Admittedly, the assets of the production society were more than sufficient to cover the loan advanced to it. One and all the prosecution witnesses stated that on the date of the application for loan the society was not indebted to the bank and that it was in a flourishing condition. There was also no question of the actual damage having been caused because the loan was repaid in full. Consequently, this case does not satisfy the last requirement of section 415. It follows that the charge under sec. 420 has to fail. "
(8) The supreme court has interpreted the offence under section 420 in tulsi ram v. The state of uttar pradesh (supra 3). The relevant portion at paras 14 and 17 read as follows:
"since the commission of forgeries by lachhimi narain could not be denied what we havenext to ascertain is whether lachhimi narain is guilty of cheating and if so whether under section 420. Indian penal code as held by the learned additional sessions judge and the high court or under section 417. Indian penal code as contended before us. Learned counsel points out and rightly, that for a person to be convicted under sec. 420, indian penal code it has to be established not only that he has cheated someone but also that by doing so he has dishonestly induced the person who was cheated to deliver any property etc. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain to person means a gain to him by unlawful means of property to which the person gaining is not legally entitled. Learned counsel contended that there has been no wrongful loss whatsoever to thebanks and the two firms which discounted the hundis drawn by one or the other of the firms owned by the family. The high courthas held that these firms did sustain a wrongful loss inasmuch as they got very meagre amounts for discounting the hundis whereas had the true facts been known to them they would not have discounted the hundis though they may have advanced loans and charged interest at between 6 and 9% on the amounts advanced. It was because of the fraudulent misrepresentation made to the banks and the firms that they lost what they could have otherwise been able to obtain and thus wrongful loss has been caused to them. We have been taken through a large number of documents on the record and it is clear from these documents that those who discounted the hundis in question were entitled to charge, apart from the discount charges, interest at 6% or above in case of non - payment within 24 hours of presentation. A reference to some of the exhibits 1440 to 1454 which are the debit vouchers of the bank of bikaner and exs. 1330 to 1345 which are debit vouchers of the bank of bihar clearly show that in fact interest in the case of the first bank at 6% and in the case of the second at 9% was charged, debited and realized by these banks from the firms in question for the entire period during which the hundis though presented, remained unpaid. These documents are only illustrative but they do indicate that in fact the banks were not deprived of interest. Learned counsel pointed out that the managers and officers of the banks and the firms were examined and they do not say that any loss of interest was caused to them in these transactions. Mr. Mathur who appears for the state, however, pointed out that in the nature of things the hundis could not be presented for payment in less than ten days and in this connection hereferred to exs. P - 1106 and 1055. These are records of bills purchased by the central bank of india, kanpur. He referred us to the penultimate columns of these exhibits headed "date enquired on" and contended that this column contained the date of presentation. As an illustration he referred us to the first entry dated june, 10. It was the date on which the hundi was discounted by the central bank of india and then he said that the date in the penultimate column is june, 20 which means that the hundi was presented on june, 20. According to him, therefore, for this period of ten days and for 24 hours thereafter the bank would have got only the discount charges and no interest. The hundi in question was realized on june, 25 and, therefore, according to him all that the bank must have got was interest for four days. But it may be pointed out that the heading of the penultimate column has not been correctly reproduced in the paper book. We have been referred to the original and there the heading is "fate enquired". Bearing in mind this fact as well as the entry in the last column which is headed "non - payment advice sent" we think that what is stated in the penultimate column is not the date of presentation at all but some other date. Unfortunately there is no column in either of the documents to show the date of presentation. Therefore, these documents do not help the state at all. Apart from that we may mention that it was for the bank to take care to see that there was no delay in the presentation of hundis and if they themselves delayed they had to take the consequences. Further, we may point out that if the bank was not able to earn interest or earn only very little interest in these transactions for as long as ten days that wouldhavebeen so in all the transactions, that is, not merely transactions which were supported by forged railway receipts but also transactions which were supported by genuine railway receipts. There is, therefore, no substance in the contention of mr. Mathur. But, in an offence under sec. 420 ipc, a pecuniary question necessarily arises. The first part of sec. 464 ipc provides that a person is said to make a false document who dishonestly or fraudulently makes, signs etc. , a document with a particular intention and covers cases both of acts which are dishonest and acts which are fraudulent. Where no pecuniary question arises the element of dishonesty need not be established and it would be sufficient to establish that the act was fraudulent and, therefore, it may be, as the learned judge has held, that where an act is fraudulent the intention to cause injury to the person defrauded must be established. But where the allegation is that a person has dishonestly induced another to part with property something different has to be considered and that is whether he has thereby caused a wrongful loss to the person who parted with property or has made a wrongful gain to himself. These are the two facets of the definition of dishonesty and it is enough to establish the existence of one of them. The law does not require that both should be established. The decision relied upon by learned counsel is, therefore, distinguishable. Learned counsel then referred to the dissenting judgment of subrahmania ayyar, j. , in kotamaraju venkatarayudu v. Emperor, ilr 28 mad 90 (f. B.) to the effect that in regard to offences falling under secs. 465 and 461 it mustbe established that the deception involved some loss or risk of loss to the individual and to the public and that it was not enough to show that the deception was intended to secure advantage to the deceived. This decision as well as some other decisions referred to by learned counsel are therefore distinguishable for the same reason which distinguishes sanjiv ratnappa ronad's case. Ilr 56 bom. 488: (air 1932 bom. 545) from the one before us. We are, therefore, of the view that the offence of cheating has been established".
(9) My learned brother hon'ble sri justice b. S. A. Swamy had an occasion to deal with section 420 ipc in p. S, prasad v. State of andhra pradesh (supra 1). It is stated at para 19 (20) in the aforesaid decision as follows:
"for all the above, i feel that there is no substance in this charge also. Section 420: cheating and dishonestly inducing delivery of property : to constitute an offence under this section there should be a deception and an intention to defraud. To bring the offence under section 420, pursuant to the deception the property should bepassed - or delivered otherwise if the property is not passed it would be a representation with a fraudulent and dishonest intention. Under this section to bring home the guilt of the accused the prosecution should prove that by making a false statement the accused induced 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, and mere making a fraudulent representation itself may notbe sufficient to punish the guilty."
The supreme court in a latest decision referred to in g. V. Rao v. L. H. V. Prasad had an occasion to deal with section 415 ih. P. C. , and observed as follows: "the petitioner is a post - doctoral fellow at centre for cellular and molecular biology, hyderabad. He invited marriage proposals for himself through advertisement in deccan chronicle dated 27th of january, 1994, in pursuance of which respondent no. 1 approached the petitioner and furnished the particulars of respondent no. 4 who is his sister. It was represented by respondent no. 1 that respondent no. 4 was born on 29th of june, 1966 and they belonged to thurupukapu community. The petitioner himself gave out that he belonged to gujala balija community which was a forward community and, therefore, he wanted a wife from a forward community. The parents of respondent no. 4, who are respondents 2 to 3 in this petition, met the parents of the petitioner and they talked and the marriage proposal was finalised. Betrothal ceremony took place on 27th of june, 1994 and later the marriage took place on 19 - 8 - 1994. On 4th of march, 1997, the petitioner allegedly, came to know that respondents 1 to 4 belonged to kondakapu community, which was a scheduled tribe, and it was then that he realized that by misrepresenting themselves as members of thurupukapu community, they had lured the petitioner into wedlock, for which the petitioner would not have agreed at all, had he known that the respondents did notbelong to thurupukapu community butbelonged to kondakapu community. It was in these circumstances that he filed a complaint in the court on 10 - 7 - 1996 under sections 415, 419, 420 read with section 34 i. P. C. , which was referred to station house officer, police station alwal, rangareddy district, andhra pradesh for investigation and report. Since the investigation was considerably delayed, the petitioner filed writ petition no. 11477 of 1997 in the high court for a writ of mandamus directing the station house officer to expedite the investigation. While the writ petition was pending, an affidavit was filed by the station house officer that after completing the investigation, he had submitted the charge - sheet in the court on 28 - 5 - 1997 against the respondents. The respondents, however, approached the high court through a petition under section 482 cr. P. C, seeking the quashing of the fir which was allowed by the impugned judgment and it is in these circumstances that this petition has been filed in this court. Learned counsel for the petitioner has contended that the high court was not justified in quashing the complaint (fir) as a charge - sheet had already been submitted after the investigation and a primafacie case was made out against the respondents. He has further contended that the high court was wrong in its interpretation of section 4151. P. C. The highcourt quashed the proceedings principally on the ground that chapter xvii of the indian penal code deals with the offences against properties and, therefore, section 415 must also necessarily relate to the property which, in the instant case, is not involved and, consequently, the fir was liable to be quashed. The broad proposition on which the high court proceeded is not correct. While the first part of the definition relates to property, the second part need not necessarily re'ate to property. The second part is reproduced below : -
". 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". This part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do somethingbut also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counseled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts. The petitioner himself is a scientist at the centre for dna finger printing and diagnostics, hyderabad, which is a prestigious institution of the country. In this capacity, he can be reasonably presumed tobe aware of the bio - diversity at the celluar and molecular level amounts human beings without the "caste" having any role in the field of human biotechnology. "
(10) It is clearly stated in all the aforesaid decisions that there must be delivery of property in pursuance of cheating in order to constitute an offence under section 420ipc. It is also clear from the principles laid down that valuable security including anything capable of being converted into a valuable security, is covered by section 420 ipc, alteration or destruction of any such valuable security is covered by 420 ipc made. The valuable security has been defined under section 30 ipc. It reads as follows:
"valuable security: - the words 'valuable security' denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right."
(11) It is clear from the provisions of section 30ipc, the words "valuable security" denote a document. Here, no such valuable security is delivered. The only contention canvassed by the learned counsel for the 2nd respondent is that in pursuance of the representation rs. 50,000/ - was handed over towards expenses to go to america and she was made to apply for visa on the strength of the marriage. There should be prima facie nexus in between delivery of the property and dishonest inducement. If the averments mentioned in the charge - sheet is taken into consideration as well as the complaint the said amount is said tohavebeen paid towards meeting the expenses to go to america. The attempt made by the 2nd respondent counsel is to show that there was a conspiracy whereunder deception has been practiced over them with the sole object of taking the laxmi reddy to america as they could not obtain visa and thereafter she went to her sister's house and later joined her husband and picked up a row with him. I do not find any nexus in between the delivery of rs. 50,000/ - and the alleged conduct of laxmi reddy. More over, no valuable security has also not been delivered. The averments made in the charge - sheet itself clearly indicate that the amount was paid towards expenses and not in pursuance of the conspiracy promising to settle his son in business at america. It does not constitute an offence under section 420 ipc.
(12) It is further contended by the learned senior counsel for the 2nd respondent that offence falling under the definition 'cheating' is covered by section 417 i. P. C. And any amount of material is sufficient. It is also contended that the magistrate has taken cognizance for higher offence, which is only criminal offence under section 417 i. P. C. , and there isnoneed to quash the proceedings. I state that there is no other property or valuable security or altering or destroying of any valuable security. The averments made in the charge - sheet coupled with the sworn statements do not constitute an offence under section420ipc. Itisnotstatedbythesupreme court in taruk k. Shah v. C. R. Alimchandani {supra 4) that when there is no prima facie material, which does not constitute an offence, the court shall not exercise its inherent powers. The court has to see whether the averments made in the charge - sheet coupled with the complaint and 161 statements recorded by the police would constitute prima facie offence. When there is no prima facie offence, it is the duty of the court to quash the proceedings. It is observed by the supreme court in state of karnataka v. M. Devendrappa that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the magistrate, it is open to the high court to quash the same in exercise of the inherent powers under section 482 of the code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole.
(13) It is next to be considered whether the averments made in the entire complaint read as a whole constitute an offence under 'cheating'. To constitute cheating one is required to prove deception of any person fraudulently or dishonestly inducement. If the person 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 act or omission cause or is likely to cause damage or harm to that person in body, mind, reputation or property. A dishonest concealment of facts is a deception within the meaning of this section. The actual date when such misrepresentation is made and the details of misrepresentation are not forthcoming. Only there is oral statement made. Unless the nature of misrepresentation is mentioned in clear terms, it cannot be stated that there was misrepresentation, which lead to cheating. If the material is considered as a whole including the charge - sheet and 161 statements, they do not constitute criminal offence of cheating.
(14) It is clear from the 161 statements and charge - sheet that there is an understanding and also the assurance that the girl will be taken to america and the boy will be settled in business in u. S. A. The assurance does not constitute a criminal offence of cheating. Something more is required to constitute criminal offence of cheating. The breach of assurance of every kind will not come under the purview of cheating. There should be some delivery of property or prevention of committing an act by making some representation in pursuance of such assurance. The facts disclosed either in the complaint or in the charge - sheet or 161 statements does not constitute an offence under sec. 417 i. P. C or under any other provision in so far as a - 1 and a - 2 are concerned. In that view of the matter, the proceedings are liable to be quashed as the magistrate took cognizance of the case when the material does not constitute an offence under sections 406, 420 and 506 read with section 109 i. P. C. Hence, i disagree with the contentions canvassedby the learned counsel for the 2nd respondent. I quash the proceedings in c. C. No. 2059 of 1999 on the file of the xi metropolitan magistrate, secunderabad.
(15) In the result, the criminal petition is allowed.
Comments