Rahis And Others vs State Of Uttarakhand

Ravindra Maithani, J

The challenge in this revision is made to the judgment and order dated 22.03.2024, passed in Criminal Revision No.34 of 2023, Ragib Vs. State of Uttarakhand and Others, (“the revision”) by the court of II Additional Sessions Judge, Roorkee, District Haridwar. By it, an order dated 22.03.2023, passed in Misc. Case No.46 of 2023, Ragib Vs. Rais and Others, by the court of I Additional Civil Judge/Judicial Magistrate Roorkee, District Haridwar (“the case”), has been set aside. In fact, by the order dated 22.03.2023, passed in the case, an application under Section 156(3) of the Code of Criminal Procedure, 1973 (“the Code”) filed by the respondent no.2 has been rejected, but, by its order dated 22.03.2024, passed in the revision, order dated 22.03.2023 has been set aside and the matter has been remanded for hearing afresh

Heard learned counsel for the parties and perused the record.

The case is based on an application filed under Section 156(3) of the Code by the respondent no.2. According to it, the respondent no.2 had business relationship with the revisionists and they were all contractors. The respondent no.2 would advance money to the revisionists under the assurance that they would return it. The respondent no.2 advanced total Rs.70,95,030/- to the revisionists either by depositing it in their accounts or by giving it in cash. The application writes that the revisionists did return on Rs.12,96,867/- and the remaining amount they did not return, and whenever asked, they started threatening the respondent no.2.

This application was rejected by the order dated 22.03.2023, passed in the case, by the Competent Magistrate holding that the transaction is civil in nature and the respondent no.2 may institute a suit for recovery of his money, but the court in revision held that merely because a lis is also civil in nature, it does not bar criminal prosecution.

Learned counsel for the revisionists would submit that the allegations, as are leveled in the application under Section 156(3) of the Code are purely civil in nature, without any element of criminality. Therefore, it is argued that the court of Magistrate has rightly rejected the application under Section 156(3) of the Code on 22.03.2023, and that order requires no interference, but it is argued that the court in the revision has set aside the order by the impugned order dated 22.03.2024, which is not in accordance with law.

Learned counsel for the revisionists would submit that if money is advanced and it is not returned, it does not give rise to a criminal action; at the inception, there was no dishonest intention to cheat the respondent no.2.

In support of his contention, learned counsel for the revisionists would refer to the principles of law, as laid down by the Hon’ble Supreme Court in the case of Dalip Kaur and Others Vs. Jagnar Singh and Another, (2009) 14 SCC 696. In the case of Dalip Kaur (supra), the Hon’ble Supreme Court observed as hereunder:-

“10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code.”

Learned counsel for the respondent no.2 would submit that the revisionists did extend threats to the respondent no.2. Moreover, it is argued that when the application under Section 156(3) of the Code was filed, the revisionists did file an FIR so as to pressure him, which is also an act of intimidation.

Learned State Counsel adopts the arguments, as advanced by learned counsel for the respondent no.2.

The law is well settled. A cause may have both elements, i.e. civil as well as criminality. In such cases, criminal action may not be stopped merely on the ground that the aggrieved party has civil remedy also available to him. But the situation would be different, if a dispute is essentially and purely civil in nature without any element of criminality, in such cases, criminal actions may not be permitted.

Insofar as cheating is concerned, it is defined under Section 415 IPC. It reads as follows:-

“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”..

Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.

The scope of Section 415 IPC has been interpreted by the Hon’ble Supreme Court in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, (2007) 12 SCC 1. In Paragraphs 41 and 42, the Hon’ble Supreme Court observed as follows:-

“41. Section 415 IPC thus requires—

Deception of any person.

(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.”

“42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.”

(emphasis supplied)

A bare reading of the above observation of the Hon’ble Supreme Court makes it abundantly clear that what is essential is the intention with which the offence is committed, and to hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making of the promise. It has been held in the above case, which this Court quotes at the cost of repetition that, “From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.”

In the instant case, essentially what are the allegations against the revisionists are that the respondent no.2 advanced money to them with regard to certain businesses. The money was returned also. What the respondent no.2 claims is that the revisionists did return Rs. 12,96,867/-, whereas, they were advanced Rs. 70,95,030/-. The revisionists as well as the respondent no.2 were contractors and they were in the business of construction. It is nowhere stated and it is nowhere revealed by reading of the application under Section 156(3) of the Code that the revisionists had any dishonest intention at the inception when they entered into the business deal with the respondent no.2, and it is apparent form the fact that Rs. 12,96,867/-, as per the respondent no.2, the revisionists have returned to him.

Therefore, this case is a breach of promise only. It has no element of criminality. The court of Magistrate had rightly rejected the application on 222.03.2023. Therefore, this Court is of the view that the impugned judgment and order dated 22.03.2024, passed in the revision, is not in accordance with law, and it deserves to be set aside.

The impugned judgment and order dated 22.03.2024, passed in the revision is set aside.

The revision is allowed.