C482/1964/2021
2023 Latest Caselaw 823 UK

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                                  C482 No. 1964 of 2021
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. Saurav Adhikari, Advocate, for the applicants.

Mr. Atul Kumar Shah, Deputy A.G., with Mrs. Mamta Joshi, Brief Holder, for the State of Uttarakhand.

Mr. Rahul Bhatt, Advocate, on behalf of Mr. Sandeep Tiwari, Advocate, for respondent No.2.

The present C482 Application is a consequence of the registration of the FIR No. 287 of 2019 dated 28th July, 2019, whereby, the complainant/respondent No.2, herein, has registered the FIR for the alleged involvement of the present applicants for commission of the offence under Section 420 of the IPC.

As per the set of allegations levelled in the FIR, there have been certain business transactions, where certain goods were said to have been sold in between December, 2018 to 30th June, 2019, by the respondent to the present applicants. But, later on, when the money was sought to be recovered by the complainant/respondent, the applicants had induced the present respondent, that they will be paying back the entire amount, as soon as they succeed in selling the property.

It has been argued by the learned counsel for the applicants, that none of the ingredients referred to in the FIR would bring the offence under Section 420 of the IPC, as in the absence of there being any element of inducement, no offence under Section 420 of the IPC would be made out against him.

In order to answer the argument extended by the learned counsel for the applicants, the definition of "cheating" as provided under Section 415 of the IPC is required to be extracted hereunder :-

"415. 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"."

The definition of "cheating" as provided under Section 415 of the IPC, it is that when a person frequently of dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, that itself will amount to be a cheating within the definition of Section 415 of the IPC.

On establishment of the commission of offence under Section 415 of the IPC, its penal provisions contained under Section 420 of the IPC, which contemplates a sentence of seven years and would also be liable for payment of fine too.

On the contrary, learned counsel for the respondents has submitted, that if the FIR itself is taken into consideration, where the applicants had induced the present respondent, as they would be remitting back the money, they admit the liability of the amount to be paid by them as assessed therein to be Rs.12,21,160/-, and when the same was not remitted back despite various assurances given by them, that itself will amount to be a malicious intention and an inducement on the part of the present applicants.

It has been further argued by the learned counsel for the applicants, that in the Chargesheet No.283 of 2019, as submitted on 12th October, 2019, the Investigating Officer has examined as many as 28 witnesses, and then, he had come to a conclusion, that he has not induced the present respondent, who has been induced to be cheated by the present applicants, but rather there were number of other persons, who had been referred to by the Investigating Officer in the Chargesheet.

The said argument of the learned counsel for the respondents is being refuted by the learned counsel for the applicants, on the ground, that the name of the persons, who have been fraudulently induced by the present applicants, for duping them of their valuable, that in itself will not amount to be an offence under Section 420 of the IPC, for the reason being, that none of the persons, who had been deceived have come forward to raise their claim for the amount, for which, they have been deceived by the present applicants.

Based on the FIR, the cognizance has been taken and the summoning order dated 23rd December, 2019, has been issued against the present applicants.

As far as the FIR is concerned, and if it is read in consonance to the Chargesheet, the element of inducement and clear intend to deprive the respondent of his amount, which was payable towards the valuable, which was transferred to the present applicants, that would be a "cheating", and hence, the offence under Section 420 of the IPC would be attracted to be established against the present applicants.

Hence, while declining to exercise my powers under Section 482 of the Cr.P.C., the C-482 Application is dismissed without prejudice to the rights of the applicants to resort to their remedies available to them as per the parameters laid down by the judgment of Hon'ble Apex Court, as reported in (2022) 10 SCC 51, Satender Kumar Antil Vs. Central Bureau of Investigation and another.

(Sharad Kumar Sharma, J.) Dated 27.03.2023 Shiv