Quashed

Milap Dugar, v. The State of Andhra Pradesh

Telangana HC6 Jan 2012CRLP/2806/2008

Case brief

AI extract

What is this about?

The High Court exercised its power under Section 482 Cr.P.C. to quash criminal proceedings against accused from a deeming university. Finding no fraudulent inducement or dishonest intention to support a charge of cheating, the Court held that mere breach of contract did not warrant prosecution.

What did the court decide?

Criminal proceedings in C.C.No.252 of 2007 and the petitions were quashed and allowed.

Milap Dugar, Vs The State of Andhra Pradesh — Cheating and Forgery | Telangana HC (2012)

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HON’BLE MR.JUSTICE R. SUBHASH REDDY

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Criminal Petition Nos.2806 & 2830 of 2008

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Date: January 6, 2012

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Between:

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Milap Dugar, S/o. late K.L. Dugar and others

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… Petitioners

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And

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The State of Andhra Pradesh, rep. by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and another

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… Respondents

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Common Order:

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The petitioners in these petitions are accused in C.C.No.252 of 2007 on the file of the II Additional Judicial First Class Magistrate, Kothagudem; as such, they are heard together and disposed of by this common order.

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In the aforesaid C.C., petitioners are sought to be prosecuted for the alleged offence under Section 420 IPC. Petitioners in Crl.P.No.2806 of 2008 are A.1 and A.4 and petitioners in Crl.P.No.2830 of 2008 are A.2 and A.3.

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The 2^nd respondent/de-facto complainant is the director of Sri Sai Academy in Paloncha, Khammam District. A.1 is the ViceChancellor of the Institute of Advance Studies in Education (IASE), a deemed university, recognized by the University Grants Commission. A.2 is the then Director of Distance Education, IASE. A.3 is the then Registrar, IASE and A.4 is the Finance Officer, IASE. There is also A.5, who is the facilitator for the said university situated at New Delhi.

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As per the contents of the complaint, the following is the case of the 2^nd respondent/de-facto complainant:

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IASE has published an advertisement in newspapers for starting study centres in distance education mode. In pursuance thereof, he accepted the offer of IASE and applied for study centres with the advice of A.5. As per the rules of the university, he had deposited some money. After accepting the money from him, IASE has given a provisional authorization vide Lr.No.D/Office/3535/05 dated 12.05.2005 through A.5. A candidate by name Arunasri, L.W.4, applied to take M.A. preparatory examination through his institute and he had drawn two demand drafts vide TT/139779 for Rs.300/-, dated 13.06.2005 from SBH, Kinnerasani Branch, Paloncha payable at State Bank of Bikaner and Jaipur in favour of IASE DDE and for Rs.200/- vide TT/581784, dated 13.06.2005 from SBH Kinnerasani Branch,

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Paloncha in favour of SAP Associates, New Delhi payable at SBH service branch, New Delhi, according to the instructions of IASE and A.5. In pursuance of the said authorization, he forwarded the demand drafts of Arunasri to IASE through A.5. The said Arunasri was provided with provisional hall ticket No.5031 IASE/DU/DE/04/286766, but when she went to the examination centre at Swamy Vimochananda Public School at Khammam, the chief coordinator informed her that they have not received the question paper so as to enable her to sit for examinations. On the ground that the said Arunasri was not provided question paper to appear for examinations, even after withdrawal of money sent to IASE, he filed private complaint alleging that all the accused have cheated him and thus they are punishable for the offences under Sections 490 and 500 read with Section 34 IPC.

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Initially, on reference to the Police, it was registered as Cr.No.59 of 2006 on the file of P.S., Paloncha rural and thereafter it was transferred to P.S., Paloncha town on the point of jurisdiction and re-numbered as Cr.No.121 of 2007. In the said crime, after completing investigation, final report is filed alleging that A.1 to A.5 have committed the offences punishable under Section 420 read with Section 34 IPC.

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Heard Sri C. Padmanabha Reddy, learned senior counsel appearing for the petitioner, learned Additional Public Prosecutor for the 1^st respondent and Sri C. Damodar Reddy, learned counsel for the 2^nd respondent/de-facto complainant.

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It is contended by the learned senior counsel appearing for the petitioner that according to the de-facto complainant, a

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candidate by name Arunasri was not furnished hall ticket; whereas she did not even turn up to sit for examinations at all. In any event, even if the contents of the complaint are taken on their face value, they do not constitute the alleged offence under Section 420 IPC, so as to prosecute the petitioners for the said offence. In support of his contention, learned senior counsel has relied on a decision of the Hon’ble Supreme Court in VIR PRAKASH SHARMA v. ANIL KUMAR AGARWAL AND ANOTHE R^[1] . It is further contended that IASE is a deemed university and it is functioning by opening distance education centres in view of the orders issued by the competent authorities and also in view of the orders obtained by it from the High Court of Rajasthan.

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On the other hand, it is contended by the Addl. Public Prosecutor for the State and Sri C. Damodar Reddy, counsel for the 2^nd respondent/de-facto complainant that the 2^nd respondent/de-facto complainant was authorized to run the study centre and necessary amounts were already collected by the university; when one of the candidates admitted from the study centre of the 2^nd respondent/de-facto complainant went to the examination centre to sit for the examination, she was not allowed on the ground that no question paper was received so as to enable her to sit for the examination.

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Having heard the learned counsel for the parties, I have perused the complaint made by the 2^nd respondent/de-facto complainant. It is to be noticed that the student, viz. Arunasri, has not filed any complaint. The 2^nd respondent, claiming to be the

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Director of Sri Sai Academy, Paloncha, has filed the private complaint in question. Even as per the contents of the said complaint, the 2^nd respondent accepted to run the study centre on the advice of A.5, who is the facilitator at New Delhi. There is no direct contact to the 2^nd respondent with IASE to run the study centre. While it is the case of the petitioners that the said Arunasri did not turn up at the examination centre to sit for the examination centre at all, on the other hand, it is the case of the 2^nd respondent/de-facto complainant that though she was carrying the provisional hall ticket, she was not allowed to sit for the examination. It is true that she was examined as a witness before the Police, but at no point of time she has lodged any complaint. From a reading of the contents of the complaint, it cannot be said that petitioners who are Vice-chancellor, Finance Officer, former Director and former Registrar of the deemed university are directly responsible for such allegations made by the 2^nd respondent. The basis on which the 2^nd respondent has started the study centre is not known. He has not referred to any permission granted by the competent authority to do run such study centre. In any event, a bare reading of the contents of the complaint and the final report do not disclose any ingredients attracting the offence under Section 420 IPC. There is no allegation either of fraudulent inducement or dishonestly delivering any property to any person attracting the offence punishable under Section 420 of IPC. Further, petitioners have placed on record the list of universities which are given provisional affiliation by the Distance Education Council. IASE is one of the universities. As per the printout

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furnished by the petitioner of the website of the Distance Education Council, IASE finds place. In that view of the matter, it cannot be said that IASE is being run without any permission from the competent authority. Furthermore, in the decision relied on by the learned counsel for petitioners in VIR PRAKASH SHARMA (1 supra), the Hon’ble Supreme Court, while dealing with a similar case, extracted the relevant portion in Hridaya Ranjan Prasad Verma v State of Bihar (SCC pp. 176-77, paras 14-15), which reads as under:

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“On a reading of the section 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 first class of cases the inducing must be fradulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

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In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. 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

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he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.”

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By applying the aforesaid principle to the facts of the case on hand, this Court is of the view that taking the complaint as it is, no case is made out against the petitioners for the alleged offence under Section 420 IPC. In that view of the matter, allowing prosecution based on the said complaint is nothing but an abuse of process of law and the same would lead to miscarriage of justice. Hence, it is evidently a fit case to exercise the jurisdiction under Section 482 Cr.P.C. and quash the proceedings in C.C.No.252 of 2007 on the file of the II Additional Judicial First Class Magistrate, Kothagudem. Accordingly, proceedings in the said C.C., are hereby quashed. Criminal petition is accordingly allowed.

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__________________ (R. SUBHASH REDDY, J ) 6^th January 2012 MRR

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[1] (2007) 7 SCC 373

Milap Dugar, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Milap Dugar, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

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