Rajesh Yadav & Anr vs State & Anr
2010 Latest Caselaw 1049 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     CRL.M.C. 540/2010

%                     Reserved on:      22nd February, 2010
                      Date of Decision: 23rd February, 2010

#     RAJESH YADAV & ANR                    ..... Appellant
!                     Through:   Mr.Shivashish Gunwal,
                       Advocate.
                  versus
$     STATE & ANR                    ..... Respondent
^                 Through:   Mr.Jaideep Malik, APP

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?               No

      2.    To be referred to the Reporter or not?            No

      3.    Whether the judgment should be
            reported in the Digest?                           No

: V.K. JAIN, J.

1. This is a petition under Section 482 of the Code of

Criminal Procedure for quashing the summoning order dated

23rd February, 2008 in Complaint Case No.1680-A/1 titled as

"Asha Ratra vs. Rajesh Yadav and Anr."

2. Quashing of the summoning Order has been sought on

the ground that no offence under Section 138 of Negotiable

Instruments Act is made out against the petitioners in view of

the judgment of the Hon'ble Supreme Court in Jugesh

Sehgal Vs. Shamsher Singh Gogi 2009(3) CC Cases (SC)

2004.

3. A perusal of the complaint filed by the respondent under

Section 138 of Negotiable Instruments Act, read with Section

420 of IPC, would show that according to the complainant,

she sold a built-up property to the petitioners who claimed

that about Rs.3 lakhs were due in respect of electricity bills,

water bills and house tax charges etc., and also demanded a

sum of Rs.10 lakhs for spending on account of expenses in

obtaining Completion Certificate from HUDDA. The petitioner

also assured the complainant that unutilized amount out of

Rs.10 lakhs being taken for obtaining Completion Certificate

from HUDDA would be returned to her within three months.

On the assurance of the petitioners to return the balance

amount to the complainant and on their delivering post-dated

cheque dated 27th September, 2009 for Rs.10 lakhs to her,

the complainant made payment of Rs.13 lakhs to them and

accepted the post-dated cheque of Rs.10 lakhs from them.

Thereafter, the petitioners did not respond, despite the

complainant trying to contact them. The complainant then

presented the cheque to the bank, when it was dishonoured

with remarks "drawer signatures differs".

4. A perusal of the summoning order dated 23rd February,

2008 would show that the petitioners have been summoned

to face trial under Sections 420/468/471 of IPC. They have

not been summoned under Section 138 of Negotiable

Instruments Act.

5. This is not the case of the petitioners that no offence

under Section 420, 468 or 471 of IPC is made out against

them, from the allegations made in the complaint. The entire

petition is based on the premise that the complaint lacks

necessary ingredients of the offence under Section 138 of

Negotiable Instruments Act and is, therefore, liable to be

quashed. A perusal of the impugned order would show that

the case of the complainant before the Trial Court is that the

cheque in question was issued from the account of one

Kailash Sharma and that petitioner Rajesh Yadav was the

person who introduced the opening of that account in the

name of Kailash Sharma. If the petitioners delivered a cheque

from the account of and using a cheque issued to Kailash

Sharma and on the strength of that cheque, they made her

part with the sum of Rs.13 lakhs, including Rs.10 lakhs

towards expenses to be incurred in obtaining Completion

Certificate from HUDDA, prima facie they would be guilty of

cheating punishable under Section 420 of IPC. A dishonest

intention on the part of the petitioner would in such a case,

be evident from their very act in using a cheque issued to

some other person and either signing that cheque themselves

or getting it signed by some person other than the holder of

the account from which the cheque was issued. This is not

the case of the petitioners that cheque in question was signed

by Kailash Sharma, holder of the account from which it was

issued. This is not their case that the cheque alleged to have

been delivered by them to the petitioners, when blank, was

issued to them. The cheque in question purports to be

signed by one Rajesh. If the petitioner(s) delivered a cheque

issued from the account of Kailash Sharma with United Bank

of India and either of them signed it or they got it signed from

some other person before delivering it to the complainant, the

intention to cheat the complainant cannot be disputed. Had

the complainant known that the cheque, being delivered to

her by the petitioners was issued from the account of Kailash

Sharma and not from the account of petitioners, she would

not have accepted the cheque from them.

6. Cheating has been defined in Section 415 of Indian

Penal Code. The following are the ingredients of cheating

defined in Section 415 of Indian Penal Code:

"1. Deception of any person.

2. (a) Fraudulently or dishonestly inducing that person:

(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 in body, mind, reputation or property."

7. The above referred ingredients prima facie stand made

out from the averments made in the complaint, coupled with

the evidence that the account from which the cheque in

question was issued, stood in the name of Kailash Sharma

and not in the name of either of the petitioners or both of

them.

8. Therefore, it cannot be said that no offence is made out

from the petitioners from the averments made in the

complaint. It is settled proposition of law that while exercising

jurisdiction under Section 482 of the Code of Criminal

Procedure, this Court cannot go into truthfulness or

otherwise the allegations made in the complaint. For the

purpose of such a petition, all the allegations made in the

complaint have to be taken as correct and on their face value.

Criminal proceedings can be quashed only if taking all the

allegations made in the complaint as true and on their face

value, no offence against the petitioner is made out.

9. The learned counsel for the petitioners has relied upon

the decision of the Supreme Court in Jugesh Sehgal (supra).

A perusal of the judgment would show that the petitioners

before the Hon'ble Supreme Court was summoned for the

offence punishable under Section 138 of Negotiable

Instruments Act. The Hon'ble Supreme Court noted that the

cheque alleged to have been issued by the petitioners to the

complainant was issued from an account pertaining to some

other person. The Hon'ble Court also noted that one of the

essential ingredients of the offence punishable under Section

138 of Negotiable Instruments Act is that the cheque must

have been drawn on an account maintained by the accused.

Since the cheque in the case before the Hon'ble Supreme

Court was not issued from the account maintained by the

petitioner, it was held that one essential ingredient of offence

under Section 138 of Negotiable Instruments Act was not

satisfied. The Hon'ble Court did not at all examine the

question as to whether any offence punishable under Section

420 of IPC or any other Section of Indian Penal Code was

made out against the petitioner or not. In the present case,

since the petitioners have been summoned under Section

420/468/471 of IPC and not under Section 138 of Negotiable

Instruments Act, the judgment relied upon by them has

absolutely no application.

10. This is not the case of the petitioners before this Court

that no offence under Section 468 and/or 471 of IPC is made

out against them, from the averments made in the complaint

and the preliminary evidence produced by them. Since the

offence under Section 420 of IPC is prima facie made out

against the petitioners, I am not going into the question as to

whether offences under Section 468 and/or 471 of IPC are

also made out against them or not. The petitioners will be

entitled to claim before the Trial Court or before a Superior

Court, in appropriate proceedings, that offence under Section

468 and/or 471 of IPC are not made out against them.

For the reasons stated in the preceding paragraphs, I do

not find any merit in the petition and the same is hereby

dismissed.

(V.K.JAIN) JUDGE FEBRFUARY 23, 2010 BG/