Arjun Singh vs E. Nagarajan and Others

Ashis Kumar Chakraborty, J—In this revisional application under section 482 of the Criminal Procedure Code the petitioner has prayed for quashing of the proceeding before court of the Judicial Magistrate First Class-II, Port Blair in relation to CR case No. 26 of 2014, TR No. 241 of 2014 filed by the respondent No. 1 complaint against him. The question that falls for consideration before this court in this application is whether the breach of an agreement of tenancy constitutes an offence of cheating punishable under section 420 of the Indian Penal Code 1860 (in short the Penal Code).

The petitioner is the owner of the building bearing survey No. 1084/1 in ward No. 7, Junglighat, Port Blair. The respondent No. 1, being the complainant, claims to be the tenant in respect of portion of the said property comprising one shop room. Since the petitioner intended to demolish the single storied wooden structure of the said building and to construct a new RCC building, the respondent No. 1 agreed to vacate his tenanted shop room and to hand over the possession of the same to the petitioner. An agreement dated August 21, 2009 was entered into by and between the petitioner and the respondent No. 1. According to the respondent No. 1 in terms of the said agreement dated August 21, 2009 he vacated the shop room in the wooden structure of the old building and shifted his business in the temporary shelter provided by the petitioner and paid a sum of Rs. 2,50,000/- to the petitioner as advance payment for obtaining tenancy of the new shop room in the proposed RCC building. It is the case of the respondent No. 1 that the petitioner has violated the said agreement dated August 21, 2009 by not handing over possession of the shop room in the new RCC building to him. By a letter dated May 23, 2011 the respondent No. 1 through his advocate informed the petitioner that in spite of receipt of advance money of Rs. 2,50,000/- towards the shop room in RCC building, he has violated the said tenancy agreement dated August 21, 2009. By the said letter the respondent No. 1 called upon the petitioner to hand over the key of the shop room in the new RCC building to him as per the said tenancy agreement dated August 21, 2009. In spite of receipt of the said notice dated May 23, 2011 the petitioner did not hand over the possession of the shop room in the said RCC building to the respondent No. 1 and denied receipt of any advance payment from the respondent No. 1. Thus, the respondent No. 1 has filed a civil suit before the Court of Civil Judge Junior Division, South Andaman District against the petitioner calming, inter alia, a decree directing the petitioner to re-induct him as tenant in the suit property and decree for compensation for the loss sustain by him. In the written statement filed in the said suit the petitioner, being the defendant denied to have received any advance payment from the respondent No. 1 and also made a counter claim for a decree for eviction of the respondent No. 1.

According to the respondent No. 1, the denial of the petitioner of the receipt of any advance amount from the petitioner, in reply to the said notice dated May 23, 2011 issued by the advocate of the respondent No. 1 and in his written statement filed in the said suit filed before the Civil Court as also raising of his counter claim in the said written statement show his intention of cheating the respondent No. 1 and by such conduct the petitioner has cheated and deceived him.

Based on the aforesaid allegations the respondent No. 1 lodged a complaint under section 190 and 200 of the Criminal Procedure Code, 1973 before the Court of learned Judicial Magistrate at Port Blair, being CR case No. 26 of 2014 and by an order dated March 18, 2014 the learned Judicial Magistrate has taken cognizance against the petitioner for committing offence punishable under section 420 of the Indian Penal Code. In the said order dated March 18, 2014 and subsequent orders passed by the learned Judicial Magistrate First Class-II, Port Blair in the said CR case No. 26 of 2014. The petitioner has filed the present application under Section 482 Criminal Procedure Code praying for quashing of the entire proceeding being CR case No. 26 of 2014.

A copy of this application was duly served upon respondent No. 1 as also on the State. Mr. Khan appearing for the petitioner concluded his submission. Mr. Arul Prasanth, learned advocate appeared on behalf of the respondent No. 1 on earlier occasions and on his ground the hearing of this application was adjourned. By an order dated July 20, 2015 last opportunity was granted to Mr. Arul Prasanth, learned advocate to appear before this Court. On July 24, 2015 when this application was taken up for hearing once again Mr. Prasanth prayed for adjournment. However, it appeared that although Mr. Prasanth is appearing in this application on behalf of the respondent No. 1, but the respondent No. 1 has not executed any Vakalatnama in favour of Mr. Prasanth to represent him in this application. Thus, Mr. Prasanth has no right to represent the respondent No. 1 in this application. Even no Vakalatnama has been filed on behalf of the State respondent. In these circumstances, after completion of the submission of Mr. Khan appearing for the petitioner, the hearing of this application was concluded on July 24, 2015.

According to Mr. Khan the allegations made in the complaint lodged by the respondent No. 1 before the learned Judicial Magistrate in the said CR case No. 26 of 2014 even if given face value and taken to be correct in the entirety they do not constitute an offence punishable under section 420 of the Indian Penal Code. He strenuously urged that from the allegations made by the respondent No. 1 in the said complaint before learned Judicial Magistrate, it is evident that the disputes raised by respondent No. 1 against the petitioner civil disputes arising out of an alleged tenancy agreement dated August 21, 2009 and the respondent No. 1 has already filed a civil suit before the Court of Civil Judge Junior Division, South Andaman District at Port Blair seeking relief against the petitioner. He strenuously contended that the denial of the petitioner, in his reply to the said notice dated May 29, 2011 and in the written statement filed in the said civil suit, of receipt of any advance money from the respondent No. 1 cannot and does not constitute an offence punishable under section 420 of the Indian Penal Code as alleged by the respondent No. 1 in his complaint filed before learned Judicial Magistrate. On the basis of such submissions, Mr. Khan prayed for quashing of the said CR case No. 26 of 2014 pending before the learned Judicial Magistrate as also orders passed in the said complaint case. In support of his contentions Mr. Khan relied on the decision of Supreme Court in the case of Dalip Kaur and others v. Jagnar Singh and Another reported in Dalip Kaur and Others Vs. Jagnar Singh and Another, AIR 2009 SC 3191 : (2009) 9 JT 184 : (2009) 9 SCALE 255 : (2009) 14 SCC 696 : (2009) 10 SCR 264 : (2009) 7 UJ 3292 : (2009) AIRSCW 5117 : (2009) 5 Supreme 368 .

I have considered the submission of Mr. Khan as also the records disclosed in this application, namely the advocate's notice dated May 23, 2011, a copy of the plaint filed by the respondent No. 1 before the Civil Court and a copy of the complaint filed before the Judicial Magistrate. It appears that on the basis of the allegations of the respondent No. 1 in his complaint, by an order dated March 18, 2014 the Judicial Magistrate has taken cognizance against the petitioner for committing offence under Section 420 of the Indian Penal Code. Under Section 420 of the Indian Penal code the person guilty of cheating shall be punished with imprisonment of either description for term which may extend to seven years and shall also be liable to fine. Now the offence of cheating has been defined in Section 415 of the Penal Code which is extracted below:--

"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 the person in body, mind, reputation or property, is said to "cheat"."

Explanation - A dishonest concealment of facts is deception with the meaning of this section.

On reading of Section 415 of the Penal Code, it appears that the ingredients of cheating punishable under Section 420 of the Penal Code are as follows:

"(i) deception of any person;

(ii) fraudulently or dishonestly inducing any person to deliver any property; or

(iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."

Therefore, it is evident that an offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating.

From the allegations contained in paragraphs 11, 12 and 15 of the complaint lodged by the respondent No. 1, before the learned Judicial Magistrate, it is ex facie evident that it is the case of the respondent No. 1 that since after receipt of the said notice dated May 23, 2011 the petitioner denied about the receipt of the advance amount of Rs. 2,50,000/- and further in his written statement filed in the civil suit the petitioner denied to have received the said advance amount of Rs. 2,50,000/- from him, the petitioner has committed an offence of cheating under Section 415 of the Penal Code. Thus, it is not the case of the respondent No. 1-complainant that the petitioner had any fraudulent or dishonest intension when the said tenancy agreement was entered on August 21, 2009 or when he paid the advance amount to the petitioner.

Therefore, in the instant case it is evident that even if the allegations made by the respondent No. 1 in his complaint before learned Judicial Magistrate are given face value and taken to be correct in the entirety, the same disclose no cognizable offence of cheating punishable under Section 420 of the Penal Code. As have been decided by the Supreme Court in the case of Dalip Kaur (supra) cited by Mr. Khan, if the dispute between parties is essentially a civil dispute arising from breach of contract, the same cannot constitute an offence of cheating under Section 415 of the Penal Code punishable under Section 420 of the same Penal code. Further, the respondent No. 1 has already filed a civil suit against the petitioner before the Civil Judge Junior Division, South Andaman District filed a suit before the Civil Court. In the plaint filed in the said suit before the Civil Court the respondent No. 1 has, alleged breach of the said agreement dated August 21, 2009 by the petitioner, relied upon the said notice dated May 23, 2011 issued by his advocate to the petitioner and he has also claimed a decree directing the petitioner in this application to re-induct him as tenant in respect of the said shop room. In the said suit already an order of status quo has been passed by the Civil Court and the same is still subsisting.

For all the forgoing reasons, I am satisfied that the petitioner has been successful to make out a case for exercise of power by this court under Section 482 of the Criminal Procedure Code, 1973 for quashing of the said CR case No. 26 of 2014, TR No. 241 of 2014 now pending before the Judicial Magistrate First Class-II, Port Blair. Accordingly the CR case No. 26 of 2014, TR No. 241 of 2014 (Shri. E. Nagarajan v. Arjun Singh) pending before the Judicial Magistrate First Class-II, Port Blair stands quashed. However, there shall be no order as to costs.