Dismissed

Anurag Aggrawal v. State of U.P. and Another

Allahabad HC30 Nov 2022A482/21429/2022

Case brief

AI extract

What is this about?

This is an application under Section 482 Cr.P.C. challenging the rejection of a discharge application in a cheating case. The High Court dismissed the application, holding that the larger bench referral resolves the legal issue on concurrent proceedings and affirming that sufficient evidence existed to frame a charge under Section 420 IPC.

What did the court decide?

Application dismissed; Trial Court directed to proceed to frame charge within three weeks.

Anurag Aggrawal Vs State of U.P. and Another — Cheating and Forgery | Allahabad HC (2022)

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 21429 of 2022

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Applicant :- Anurag Aggrawal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anand Prakash Dubey Counsel for Opposite Party :- G.A, Hemant Kumar

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Hon'ble Saurabh Shyam Shamshery,J.

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1 . This application under Section 482 Cr.P.C. is filed against the part rejection of discharge application vide order dated 30.11.2021 passed by Additional Chief Judicial Magistrate, Court No. 1, Meerut in Case No. 4806 of 2021, under Sections 406, 420 IPC, Police Station Nauchandi, District Meerut as well as against the order dated 06.05.2022 passed by Sessions Judge, Meerut in Criminal Revision No. 17 of 2022.

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2 . Sri Anand Prakash Dubey, learned counsel for applicant, submits that on same or similar allegations Opposite Party No. 2, i.e., Complainant, has initiated two proceedings. Initially by lodging FIR under Sections 406, 420 IPC and later on way of filing complaint under Section 138 of Negotiable Instruments Act as the cheque given by applicant was dishonoured. Learned counsel further submits that in view judgments passed by Supreme Court in G. Sagar Suri and another vs. State of U.P. and others (2000) 2 SCC 636 and Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao and another (2011) 2 SCC 703 on the same set of facts the proceedings under Section 138 Negotiable Instruments Act as well as under Sections 406, 420 IPC cannot run together and further that since in the impugned order the allegations are not found at the anvil of test of framing charge with regard to allegation under Section 406 IPC, therefore, allegation for offence under Section 420 IPC is also not made out as the essential ingredients of cheating and dishonest intention are missing.

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3 . Sri Hemant Kumar, learned counsel for Opposite Party No. 2, submits that the issue, whether on the same or similar facts proceedings under Section 138 of Negotiable Instruments Act as well as under Sections 406 and 420 IPC can go together or not, has been referred to Larger Bench by Supreme Court vide order dated 11.08.2022 passed in J. Vedhasingh vs.

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R.M. Govindan (SLP (Crl) No. 2864 of 2019) due to difference of opinion about correct law laid down in G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) and Sangeetaben Mahendrabhai Patel vs. State of Gujarat, (2012) 7 SCC 621 and V.S. Reddy and sons vs. Muthyala Ramalinga Reddy (Crl. Appeal No. 1285 of 2015), decided on 28.09.2015, therefore, at this stage this Court may not take a particular view. Learned counsel further submits that since in the impugned order Trial Court has come to definite conclusion that there are more than prima facie evidence to frame charge under Section 420 IPC, therefore, this Court may not interfere under inherent jurisdiction.

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4 . Heard learned counsel for parties and perused the material available on record. 5 . With regard to first contention I find merit in the argument of learned counsel appearing for Opposite Party No. 2 and since the issue has already been referred to Larger Bench, therefore, to follow one of the judgment, referred above, will not be a correct approach.

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6 . Before adverting to rival submissions on the issue of discharge, it would be apposite to refer few paragraphs of the judgment passed by Supreme Court in Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey and others, 2022 SCC OnLine SC 913 as under:

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“29. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is

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placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See : Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).

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In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, this Court observed in paragraph 30 that the Legislature in its wisdom has used the expression “there is ground for presuming that the accused has committed an offence”. There is an inbuilt element of presumption. It referred to its judgement rendered in the case of State of Maharashtra v. Som Nath Thapa and others, (1996) 4 SCC 659, and to the meaning of the word “presume”, placing reliance upon Blacks’ Law Dictionary, where it was defined to mean “to believe or accept upon probable evidence”; “to take as true until evidence to the contrary is forthcoming”. In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, incriminating material and evidences put to the accused in terms of Section 313 of the Code, and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the Court forming its final opinion and delivering its judgement.....” (emphasis supplied)

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7 . In the above background I have carefully perused the impugned order. Ingredients of Section 415 IPC and Section 415 IPC itself are mentioned hereafter:

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“ 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”.”

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The essential ingredients of the offense of cheating are:

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Deception of any person

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(a) Fraudulently or dishonestly inducing that person-

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(i) to deliver any property to any person: or

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(ii) to consent that any person shall retain any property; or

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(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no 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.”

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8 . Further, a fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. (See, Vijay Kumar Ghai and others vs. State of West Bengal and others (2022) 7 SCC 124)

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In the present case, Trial Court has referred the facts that applicant has induced Opposite Party No. 2 taking advantage of family relationship to handover about 30 Kgs of silver with assurance that profit will be shared. However, it was neither returned back nor profit was shared and as such the above referred ingredients mentioned in Section 415 IPC are existed which are more than prima facie case as applicant has intention to deceive Opposite Party No. 2 since inception. Therefore, evidence collected by the prosecution is sufficient to presume that the accused has committed an offence under Section 420 IPC. The test laid down in Ghulam Hassan Beigh (supra) is satisfied.

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10 . In these circumstances, I am of the view that Trial Court has rightly come to conclusion that charges under Section 420 IPC are made out and also held that no charge under Section 406 IPC is made out and Revisional Court has also rightly confirmed the above view of Trial Court.

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11 . The application is accordingly dismissed.

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12 . Trial Court shall proceed to frame charge, if not already framed, within a period of three weeks from today and thereafter proceed further to conclude trial expeditiously, if there is no legal impediment. Order Date :- 30.11.2022 AK

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Digitally signed by AWADESH KUMAR Date: 2022.11.30 18:06:13 IST Reason: Location: High Court of Judicature at Allahabad

Anurag Aggrawal v. State of U.P. and Another

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Anurag Aggrawal v. State of U.P. and Another

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