1. This criminal revision under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (for short ‘CrPC’) is preferred by petitioner seeking quashment of order dated 02.11.2022 passed in S.T. No.280/2021 by which learned Additional Sessions Judge (FTC) Bilaspur has framed a charge under Section 420 of the Indian Penal Code, 1860 (for short ‘IPC’) against the petitioner.
2. Facts relevant for disposal of present case are that on 7.6.2017 complainant lodged written complaint in concerned police station mentioning that in the year 2011 she came into contact with petitioner’s husband namely Amit Kumar Kannauj and friendship developed between them. On the pretext of providing job to her in Railways, petitioner’s husband has obtained a total sum of Rs.6,48,150/-, which she has given to him either in cash or deposited in his account on different occasions. Thereafter, petitioner's husband took the complainant to Puri (Odhisha) on the pretext of her interview and there he established physical relation with her without her wish. It is further alleged that once when she went to the house of petitioner’s husband to give money, there also he established physical relation with her. Said Amit Kumar Kannauj neither got the job for complainant nor returned money to her. The complainant, when demanded her money back, said Amit Kumar Kannauj threatened her for life. It is further alleged that petitioner herein executed an agreement to repay the amount given to her husband in monthly instalments within 1½ year, but she also did not return the amount and thus by her acts she facilitated wrongful gains to her husband and thereby both have cheated complainant. Based on written complaint of complainant, Police registered offence under Section 376, 420, 34 of IPC against petitioner and her husband.
3. Upon completion of investigation, police filed charge sheet against petitioner and her husband for the offences enumerated above. The case came to be committed to the Court of Additional Sessions Judge (FTC), Bilaspur, who after taking into consideration the material available in the charge sheet, arrived at a conclusion that action on the part of petitioner falls within the ambit of ‘cheating’ which is punishable under Section 420 of IPC, and accordingly framed the charge under Section 420 IPC against her, the same was read over to her and she pleaded not guilty and claimed to be tried. Feeling aggrieved by order of framing charge, petitioner has filed this criminal revision.
4. Learned counsel for the petitioner submits that framing of charge is not a mechanical exercise but is a judicial application of mind and while framing charge, the Court is required to sift evidence and find out as to whether there is grave suspicion arising out of material on record based on which charge can be framed against an accused. In case at hand, even if the allegations contained in the complaint submitted by the complainant are to be read as a whole and accepted in its entirety as true, it cannot be said an offence under Section 420 of IPC is made out against the petitioner. In the entire complaint / FIR, there is no allegation against petitioner that she had given assurance of arranging job for complainant and on that false pretext obtained money from her. Petitioner, being a wife, has simply undertaken to repay the amount allegedly obtained by her husband from complainant and her failure to keep that promise subsequently cannot be presumed as an act leading to cheating, giving rise to criminal prosecution. At the worse, civil action for breaching the undertaking can be taken against the petitioner. He contended that basic ingredient of offence ‘cheating’, as provided under Section 415 of IPC is conspicuously missing and if petitioner is allowed to be prosecuted for offence under Section 420 of IPC in the facts of instant case, it will be a clear-cut abuse of process of law. Therefore, the charge framed against petitioner for the offence under Section 420 of IPC is not legally sustainable and liable to be quashed. He further contended that only after filing of civil suit by petitioner seeking declaration that agreement dated 17.4.2011 be declared null and void, the complainant has lodged complaint against petitioner. In support of his submissions, he placed reliance on decisions in cases of Devendra & ors vs. State of UP & anr, reported in (2009) 7 SCC 495; Sarabjeet Kaur Vs. State of Punjab, reported in 2023 Live Law SC (157); Priti Saraf vs. State, reported in 2021 (3) CGLJ 188 (SC).
5. On the other hand, learned counsel for the State supporting the order impugned, submitted that trial Court has applied its judicial mind and given reasons while passing order impugned for framing charge against petitioner and whatever submission being made in instant petition can at best be her defence which can be examined only at the stage of trial and not at this stage. He submits that even if the complaint has a flavour of civil nature, that by itself is no ground to quash the charge. There was inducement to cheat on the part of petitioner and since a prima facie case, of the petitioner having committed offence under Section 420 of IPC has been made out, it is not for this Court to weigh the evidence or minutely examine the allegations in the complaint at this stage. In support of his submissions, he placed reliance on decision in cases of Supdt. & Remembrancer of Legal Affairs, W.B. vs. Anil Kumar Bhunja, reported in AIR 1980 SC 52; Amit Kapoor v. Ramesh Chander & anr, reported in (2012) 9 SCC 460; Om Wati (Smt.) & anr. vs. State, reported in (2001) 4 SCC 333.
6. I have heard learned counsel for the parties and perused the documents available in record of criminal revision.
7. In the instant case, allegation levelled against petitioner in FIR is of cheating. 'Cheating' is defined in Section 415 IPC and is punishable under Section 420 of IPC. Section 415 IPC is extracted below for ready reference:
“415. Cheating - Whoever, by deceiving any persons, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons 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".
8. A bare reading of above provision makes it clear that the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. After deception has been practised the person deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception? In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. It further requires that the person so deceived has done some thing which he/she would have not done if he or she was not deceived.
9. In case of Iridium India Telecom Ltd. vs. Motorola Incorporated & others, reported in (2011) 1 SCC 74, Hon'ble Supreme Court taking note of the provisions as contained in Section 415 of IPC, has held that deception is a necessary ingredient for the offence of cheating under both parts of Section. Relevant part of said judgment is extracted below for ready reference:-
“62. A bare perusal of the aforesaid section would show that it can be conveniently divided into two parts. The first part makes it necessary that the deception by the accused of the person deceived, must be fraudulent or dishonest. Such deception must induce the person deceived to: either (a) deliver property to any person; or (b) consent that any person shall retain any property. The second part also requires that the accused must by deception intentionally induce the person deceived either to do or omit to do anything which he would not do or omit, if he was not so deceived. Furthermore, such act or omission must cause or must be likely to cause damage or harm to that person in body, mind, reputation or property. Thus, it is evident that deception is a necessary ingredient for the offences of cheating under both parts of this section. The complainant, therefore, necessarily needs to prove that the inducement had been caused by the deception exercised by the accused. Such deception must necessarily produce the inducement to part with or deliver property, which the complainant would not have parted with or delivered, but for the inducement resulting from deception. The explanation to the section would clearly indicate that there must be no dishonest concealment of facts. In other words, non-disclosure of relevant information would also be treated as a misrepresentation of facts leading to deception.”
10. Recently, in case of Deepak Gaba & ors vs. State of Uttar Pradesh & ors, reported in (2023) 3 SCC 423, the Hon'ble Supreme Court has observed thus:
"18. In order to apply Section 420 of the IPC, namely cheating and dishonestly inducing delivery of property, the ingredients of Section 415 of the IPC have to be satisfied. To constitute an offence of cheating under Section 415 of the IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415 of the IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating.”
11. In the light of above principles constituting a criminal offence of cheating, let us see whether allegations made in FIR/complaint does constitute offence of cheating so far present petitioner is concerned.
12. Perusal of contents of FIR would show that main allegation against petitioner is to the effect that she had executed an agreement to repay the amount, allegedly obtained by her husband from the complainant on the pretext of providing job to her, in monthly instalments within 1½ year, but she failed to return the amount, thus by her acts she also facilitated wrongful gains to her husband and thereby both have cheated complainant.
13. A copy of agreement executed by petitioner on 17.4.2014 is available on record and a glance of the same would show that petitioner had executed an agreement to repay Rs.5,95,000/-taken by her husband from complainant in relation to his business, said transaction is not within her knowledge, however, looking to her relation and family, she would try to return aforementioned amount to complainant within 1½ years in instalments as per her convenience. This agreement was signed by the complainant also.
14. I have also perused the statements of the complainant and her mother recorded during the course of investigation, but said statements do not contain anything more than that alleged in FIR.
15. If the contents of FIR and statement of complainant under Section 161 CrPC are read in conjunction juxtaposing each other, it is clear that it does not disclose that petitioner had played any specific role in cheating the complainant. The complainant has nowhere described as to how and in what manner petitioner had deceived or induced or made false representation to her for the purpose of giving money to her husband (co-accused) on different occasions. In fact, main allegation as appearing against the petitioner is that she promised to repay the amount allegedly given to her husband by the complainant, but subsequently petitioner could not fulfil that promise. But, mere failure to fulfil the promise made is not sufficient to infer that petitioner had deceived or induced or made false representation to the complainant for the purpose of giving money to her husband (co-accused) on different occasions, more so when petitioner had paid a sum of Rs.1,50,000/- to the complainant, as stated by complainant in her statement recorded under Section 161 CrPC.
16. That apart, along with charge sheet, police submitted copy of complaint dated 14.3.2016 submitted by complainant to the Inspector General of Police, Bilaspur with the subject “complaint regarding financial and physical exploitation in the name of providing employment'. In this complaint also there is no allegation that petitioner ever induced the complainant fraudulently or dishonestly to part with the money.
17. In Mahadeo Prasad v. State of W.B., reported in AIR 1954 SC 724, it was held thus:
"The High Court observed rightly that if the appellant had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But, if on the other hand, he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established."
18. In Ramautar Choukhany v. Hari Ram Todi, reported in 1982 Crl.L.J 2266, it is held thus:
"6.What are the essential requisites of the offence u/s.420 IPC? A trite question but it needs reiteration, Failure to honour a promise does not by itself amount to an offence u/s. 420 read with S. 415 IPC. The essential requisites of the offence are - (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 should retain any property, or (b) intentionally inducing that person to do or omit to do anything which that person would not do or omit to do but for the deception and which act or omission causes damage or harm to that person in body, mind or property.”
19. In case of Vijay Kumar Ghai & ors Vs. State of West Bengal, reported in (2022) 7 SCC 124, the Hon'ble Supreme Court has observed thus:-
“38. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this court in Hridaya Ranjan Prasad Verma Vs. State of Bihar, the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the appellants.
40. Having gone through the complaint/FIR and even the charge sheet, it cannot be said that the averments in the FIR and the allegations in the complaint against the appellant constitute an offence under Section 405 & 420 IPC, 1860. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 IPC can be said to have been made out. In the instant case, there is no material to indicate that Appellants had any malafide intention against the Respondent which is clearly deductible from the MOU dated 20.08.2009 arrived between the parties.
47. The order of the High Court is seriously flawed due to the fact that in its interim order dated 24.03.2017, it was observed that the contentions put forth by the Appellant vis-à-vis two complaints being filed on the same cause of action at different places but the impugned order overlooks the said aspect and there was no finding on that issue. At the same time, in order to attract the ingredients of Section of 406 and 420 IPC it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the petitioner and/or others to cheat and/or to defraud the complainant right from the inception. Furthermore it has to be prima facie established that due to such alleged act of cheating the complainant (Respondent No. 2 herein) had suffered a wrongful loss and the same had resulted in wrongful gain for the accused(appellant herein). In absence of these elements, no proceeding is permissible in the eyes of law with regard to the commission of the offence punishable u/s 420 IPC. It is apparent that the complaint was lodged at a very belated stage (as the entire transaction took place from January 2008 to August 2009, yet the complaint has been filed in March 2013 i.e., after a delay of almost 4 years) with the objective of causing harassment to the petitioner and is bereft of any truth whatsoever.”
(emphasis supplied)
20. In the case of Sarabjit Kaur v. State of Punjab & anr. reported in (2023) 5 SCC 360, the Hon'ble Supreme Court has observed thus:-
“13. A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that Respondent 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by Respondent 2. When the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which FIR was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the court."
21. In case of Amit Kapoor vs. Ramesh Chander, reported in (2012) 9 SCC 460, Hon'ble Supreme Court has laid down the principles to be borne in mind for proper exercise of jurisdiction under Section 397 or 482 CrPC, as the case may be, particularly in the context of quashing of charge. The principles in Amit Kapoor's case (supra) were recently quoted with approval in case of Manendra Prasad Tiwari v. Amit Kumar Tiwari & another, reported in 2022 SCC Online SC 1057. One of the principles on which revisional jurisdiction can be exercised is that if the allegations are patently so absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. The principles culled out by Hon'ble Supreme Court in case of Amit Kapoor (supra) read thus:-
“27.Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgements of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7 The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10.It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11.Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14 Where the charge-sheet, report under Section 173 (2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15 Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.”
22. In case of Chitresh Kumar Chopra v. State (Government of NCT Delhi), reported in (2009) 16 SCC 605, has observed in Para-25 as under:-
“25.It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See: Niranjan Singh Karam Singh Punjabi & Ors. Vs. Jitendra Bhimraj Bijja & Ors, (1990) 4 SCC 76).”
23. From the above decisions it is manifest that if the allegations are patently so absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere in exercise of its revisional jurisdiction with regard to quashing of charge.
24. In the case at hand also, on the basis of allegations made in FIR and whatever appears from the accompaniments thereof as also from the statements of complainant and her mother recorded under Section 161 of CrPC, no offence of cheating punishable under Section 420 of IPC can be said to have been made out as against present petitioner because the basic and essential ingredients for the offence of cheating, as defined under Section 415 of IPC, are lacking in the present case as against petitioner. This being the position, to prevent abuse of process and to secure the ends of justice, it becomes imperative to quash the order impugned passed by trial Court framing charge under Section 420 of IPC against petitioner.
25. Therefore, this criminal revision is allowed. Impugned order dated 02.11.2022 (Annexure P-1) as also charge memo dated 02.11.2022, so far as it relates to framing of charge under Section 420 of IPC against petitioner, are set aside. Petitioner stands discharged from the charge of Section 420 of IPC.
