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TMI Blog2017 (8) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... any') was founded in the year 1984 by one I.J. Aneja as Chairman. Father of the Appellant, Major P.C. Sahay (Retd.) joined the Company as Branch Manager at District Fatehpur. Several persons including Appellant as well as Respondent No. 2 deposited different amounts in the Company. Respondent No. 2 and his wife deposited total amount of Rs. 86,000/- in the Company in June/July, 1987. The owner/Proprietor of the Company on 20.06.1996 made a public declaration that the owner would bear the full liability and responsibility of all deposits made by various investors across the country and employees and staff of the Company have no personal liabilities to repay to the investors. The Company faced a financial trouble, cash/liquidity crunch and was unable to make repayment of the money of the investors. Respondent No. 2 lodged First Information Report on 30.05.1998 against the Appellant and his father Major (Retd.) P.C. Sahay Under Section 420 Indian Penal Code. A Case Crime No. 386 of 1998 was registered against the Appellant Under Section 420 Indian Penal Code. A criminal writ petition was filed challenging the FIR dated 30.05.1998 by the Appellant as well as his father Major P.C. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the loss was caused to the complainant due to the false assurance given by Major P.C. Sahay (Retd.) and the Appellant who was his son. 9. We have considered the submissions made by the learned Counsel for the parties and perused the records. 10. The copy of First Information Report lodged by Respondent No. 2 against the Appellant and his father is at Annexure-P6 to the paper book. It will be useful to reproduce the entire First Information Report lodged by Respondent No. 2 which is as follows (as translated into English): To, the S.H.O. Kotwali Fatehpur Janpat Fatehpur Sir, It is requested that the applicant colonel R.K. Singh (Retired) is a R/o Mohalla Nasirpur Lal Bahadur Shashtri Marg, City, Fatehpur P.S. Kotwali Fatehpur Janpat Fatehpur. In the City Fatehpur in Mohalla Civil Lines of the applicant an office was opened at I.T.I. Road in the name of Aneja Group Consultancy. Their People came to the applicant and make him understand and assured him if I or any person will deposit money with their company, their company will return the double amount after three years but the applicant did not assure on them. (3) But In the month of June 1997 retired Major P.C. Sahay R/o Lavro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Aneja Financial Services Limited and Aneja Group of Companies. In the complaint filed before the District Consumer Forum neither the Appellant nor his father was arrayed and no allegation was made against the Appellant and his father in the complaint. It is also relevant to note that the said complaint filed by Respondent No. 2 and his wife ultimately was allowed by the District Consumer Forum on 27.12.2006. The District Consumer Forum directed the amount as claimed to be paid within 15 days after receiving the copy of the order. 12. It is also relevant to note that the Appellant had also filed a complaint being No. 111 of 1999 along with his wife, son, father and other family members alleging that applicants had deposited an amount of Rs. 3,49,415/- in the Company which has not been returned back. The District Consumer Forum allowed the complaint filed by the Appellant vide order dated 16.08.2001 directing payment with interest at the rate of 9% per annum. 13. In the statement made before the Police Under Section 161 Code of Criminal Procedure both Respondent No. 2 and his wife have repeated the same allegations which were made in the First Information Report. In the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is with regard to the cheating and dishonestly inducing delivery of property which is to the following effect: Section 420. 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. 18. According to Section 415 Indian Penal Code, the inducement must be fraudulent and dishonest which depends upon the intention of the Accused at the time of inducement. This Court had occasion to consider Sections 415 and 420 Indian Penal Code in Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr., 2000 (4) SCC 168. This Court after noticing the provisions of Section 415 and 420 Indian Penal Code stated following in paragraphs 14 and 15: 14. On a reading of the Section it is manifest that in the definition there are set forth two separate classes of acts which the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. (See Ajay Mitra v. State of M.P., 2003 (3) SCC 11) 11. There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta, 2009 (1) SCC 516 is attracted, which are as under: (SCC p. 523, para 15) (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the Accused to hold absence of any mens rea or actus reus. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating have been highlighted. In State of Kerala v. A. Pareed Pillai' a two-Judge Bench ruled that: (SCC p. 667, para 16) "16.... To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise [and] such a dishonest intention cannot be inferred from [a] mere fact that he could not subsequently fulfil the promise." 22. In G.V. Rao v. L.H.V. Prasad, 2000 (3) SCC 693, this Court has held thus: (SCC pp. 696-97, para 7) "7. As mentioned above, Section 415 has two parts. While in the first part, the person must 'dishonestly' or 'fraudulently' induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay AIR 1956 SC 575, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, 'mens rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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