Rahul Khajuria & Others vs State & Others

R.C. Khulbe, J

By way of present application, moved under Section 482 of Cr.P.C., applicants seek to quash the entire proceedings of Criminal Case No.01 of

2019 (Case Crime No.5/18, State v. Kanhiya & others, Charge-sheet no.13/2018 dated 15.12.2018) pending before the Court of Judicial

Magistrate, Ukhimath (Rudraprayag).

Put briefly, facts of the case are that respondent no.3-Inspector T.S. Rana submitted a written report on 17.5.2018 at 6:45 PM with the averments

that on that day, he, along with the police force, reached at Rampur by a private vehicle. On the information of informant, they reached in front of

‘Ankur Lodge’ where on gathering information about the helicopter tickets, a person, named Kanhaiya, came out of a tea shop. On making

enquiry about the tickets by Constable Sachin, accused Kanhaiya disclosed the rate of ticket to be Rs.16,000/- per person, and on further persuasions,

Kanhaiya became ready to provide tickets at Rs.13,000/- per person. Then the police persons arranged Rs.39,000/-. Thereafter, the police persons

were brought at ‘Simsam Helipad’ where they called a man named Rohit who further called one person named Madhusudan. All those three

persons, named, Kanhaiya, Rohit and Madhusudan took a sum of Rs.39,000/-from the police persons; then by using the necessary force, Kanhaiya

and Rohit were nabbed while Madhusudan managed to flee away.

The matter was investigated after which a charge-sheet as against Kanhiya, Rohit and Madhusudan, as also against the present applicants, namely,

Rahul Khajuria and Sanjeev Kumar Chaudhary, was filed u/s 420, 120B and 34 IPC. Aggrieved thereby, present application u/s 482 Cr.P.C. has been

filed by the applicants, herein.

I have heard learned Counsel for the parties and perused the entire material available in the file.

It is argued for the applicants that no offence is made out against them; they have been falsely implicated; even they were not named in the FIR; all

the allegations are as against the co-accused Kanhiya, Rohit and Madhusudan, who, as per the FIR, received the money from the police persons; the

applicants neither received any money nor did they deliver any ticket to the police people’ and hence, the proceedings qua them is liable to be

quashed.

Per contra, learned Counsel appearing for the State argued that the role of the present applicants is absolutely akin to that of co-accused namely

Kanhiya, Rohit and Madhusudan.

Before proceeding any further to examine the contentions of the learned Counsel for the parties, it is necessary to note the ingredients for

establishing a charge under Section 420 of the Indian Penal Code. Section 415 Indian Penal Code defines ‘cheating’ to the following effect:

“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"".â€​

Section 420 Indian Penal Code is with regard to the ‘cheating and dishonestly inducing delivery of property’ which reads as under:

“Cheating and dishonestly inducing delivery of property.-

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the

whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable

security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to

fine.â€​

On a reading of definition of ‘cheating, it is manifest that in the definition there are set forth two separate classes of acts which the person

deceived may be induced to do. In the first place, he may be induced fraudulently or dishonestly to deliver any property to any person. The second

class of acts, set forth in the Section, 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 present case, it becomes evident on a perusal of the FIR that respondent no.3, along with police people, went on the spot where Kanhaiya

met them who was asked to arrange for helicopter tickets. Accused Kanhaiya agreed to provide tickets at Rs.13,000/- per person. Thereafter, he

along with police people reached at ‘Simsam Helipad’ where co-accused Rohit and Madhusudan were also present. The police people delivered

Rs.39,000/- to those persons. Thereafter, Kanhaiya, Rohit and Madhusudan delivered three helicopter tickets to Constable Sachin.

From a perusal of the FIR and the evidence collected during investigation, it is visible that neither any money was given by police people to the

present applicants nor the present applicants delivered any ticket to the police people. Even the present accused were not present at the spot. There

was no conversation held between the police and the applicants on the spot.

According to the FIR, all the allegations were made against co-accused Kanhaiya, Rohit and Madhusudan. In order to constitute an offence of

cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had

fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. The Magistrate concerned summoned

the present applicants simply on the basis of submission of charge-sheet by the I.O. whereas the ingredients of cheating are clearly missing in the

facts of the present case against the applicants.

Thus, I am of the considered view that in the present case, the ingredients of Cheating, as defined u/s 415 IPC, are clearly missing so as to convict

the applicants u/s 420 IPC, and thus, the present application is liable to be allowed.

For the aforesaid reasons, the present C482 application is allowed. The entire proceedings of Criminal Case No.01 of 2019 (Case Crime No.5/18,

State v. Kanhiya & others, Charge-sheet no.13/2018 dated 15.12.2018) pending before the Court of Judicial Magistrate, Ukhimath (Rudraprayag), are

hereby quashed qua the present applicants namely Rahul Khajuria and Sanjeev Kumar Chaudhary only.

The Trial Court is directed to proceed with the trial as far as other accused are concerned in this case.