Allahabad High Court
Indra Mani Mishra vs State Of U.P. And Anr. on 23 April, 2019
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 28
Case :- U/S 482/378/407 No. - 5433 of 2015
Applicant :- Indra Mani Mishra
Opposite Party :- State Of U.P. And Anr.
Counsel for Applicant :- Diwakar Pratap Pandey
Counsel for Opposite Party :- Govt. Advocate,Prahlad Maurya
Hon'ble Dinesh Kumar Singh,J.
1. This petition under Section 482 Cr.P.C. has been filed for quashing of the judgement 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 since the ingredients under the above sections are made out.
13. It is the specific allegation of the complainant that the accused person having received the money by making a promise that he would provide job, however, later committed breach of trust and thereby, fraudulently and dishonestly induced him since he did not provide any job nor returned the money.
14. In order to hold a person guilty of cheating as defined under Section 415 IPC, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise with an intention to retain the property. In other words, section 415 IPC which defined cheating, requires deception of any person (a) inducing that person to, (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property, or (b) intentionally inducing that person 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, anybody?s mind, reputation or property.
15. Therefore, making false promise by the accused person by assuring that he would get job to the complainant on payment of amount itself establish the ingredient that at the time of making the promise, he had fraudulent and dishonest intention to deceive the complainant and to get gained wrongfully. Therefore, when the ingredients of the cognizable offences punishable under the Indian Penal Code prima facie are made out, it is the bounden duty of the Investigating Officer to register the complaint and proceed with the investigation.
11. It is the specific case of the petitioner in the complaint that the accused person had received the money by making false promise that he would provide job of Constable in the Excise Department to his son. However, later on he committed breach of trust and thereby fraudulently and dishonestly induced him as he did not provide any job nor returned the money. In view of the aforesaid, the offence was clearly made out, but the Magistrate had dismissed the complaint ignoring all these material facts and the revisional court too has ignored the ingredients of the commission of offence while affirming and dismissing the revision and, therefore, the orders are liable to the quashed.
12. Thus, the petition is allowed and the order dated 16.9.2015 passed by the Additional Session Judge, Ambedkar Nagar and the oder dated 1.9.2015 passed by the Magistrate are hereby quashed. The Magistrate is 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.)
Order Date :- 23.4.2019
Rao/-
