JUDGMENT
L. Mohapatra, J.
1. In this application under Section 482, Cr.P.C. the petitioners pray for quashing the order dated 4.11.2003 passed by the learned S.D.J.M., Bhubaneswar in G.R. Case No. 2610 of 2000 taking cognizance of offences under Sections 419/420/120-B/34 of the Penal Code.
2. It appears from the record that one Krushna Chandra Pradhan, Chairman, Admission Sub-Committee-JEE (EM)–2000 lodged a report before the Inspector-in-charge, Kharavela Nagar Police Station alleging therein that a candidate with General Merit Rank No. 2199 came on 12th August, 2000 to the counselling desk. On interrogation, he admitted that he brought Bank Draft for Rs. 25,000/- which was given to him by an unknown person who posed to be his brother. The said candidate further disclosed that the accompanying person had advised him to tell that he is his brother and he would take care of ail other things, if he opts for Computer Science and Engineering (payment seat) in ITER, Bhubaneswar. The said candidate alleged to have admitted that the accompanying person is completely unknown to him and refused to take admission. A copy of the written complaint received from the said candidate was enclosed with the FIR and it was alleged in the FI.R that a racket is working in seat blocking for the purpose of depriving meritorious students. On the basis of such an information lodged in the Police Station, investigation was taken up. During investigation it was revealed that petitioner No. 1 is the Chairman of ITER and petitioner No. 2 is the brother of petitioner No. 1. For the purpose of admission in the said college both the petitioners 1 and 2 were contacting different students who had secured lower ranks in the Joint Entrance Examination for Engineering and not interested to read in Non-Government Engineering and not interested to read in Non-Government Engineering Colleges on payment of donation and were making payment on their behalf for taking admission and were also persuading them to leave the college again on payment of some amount and in the process were blocking the seats to be filled up later on, on receipt of huge amount of money from the non-deserving students. Basically on the above allegation, charge sheet was submitted for commission of the aforesaid offences and the learned Magistrate took cognizance of the same.
3. Shri B. Baug, the learned counsel appearing for the petitioners submitted that even accepting the entire prosecution case, no offence under Section 419 or 420 of the Penal Code is made out. If the principal offence under Sections 419 and 420 is not made out, the order taking cognizance in respect of offence under Section 120-B will automatically fail. In order to support such contention, the learned counsel appearing for the petitioners not only drew the attention of the Court to the statements of witnesses recorded during investigation, but also referred to some decisions and submitted that since no offence either under Section 419 or 420 is made out, the order taking cognizance is liable to be quashed. The learned Additional Standing Counsel, on the other hand, submitted that the ingredients of Section 419 or 420 of the Penal Code whether satisfied or not is not be examined at this stage and serious allegations of seat blocking being available in the case diary, there is no reason for this Court to interfere with the impugned order.
4. In order to appreciate the rival contentions of the learned counsel appearing for the parties, it is necessary to look into the case diary to see what are the allegations made by the prosecution against the present petitioners. I have already dealt with the allegations made in the FIR and there is no need to repeat the same. Referring to statements of two of the students who are alleged to have faced such type of pressure need to be looked into first. One such statement is, one Tarun Mohanty. In his statement before the police under Section 161, Cr.P.C. he has stated that he was known to petitioner No. 2 and he was introduced to petitioner No. 1 by petitioner No. 2 in the office of the petitioner No. 1 at Baramunda. It is alleged that the petitioner No. 1 along with other two petitioners requested him to pursue the students who have secured lower rank in Joint Entrance Examination for Engineering and willing to take admission in Non-Government Engineering Colleges by paying donation. He further persuaded to find out such students for whom the petitioners will pay the fee and also pay some amount at the time of withdrawing from the college. This witness has further stated that he had arranged some such students and one of them was one Radha of Balasore District. However, the said student did not agree to the proposal and the admission could not take place. This witness has further alleged that one Sudhakar Das was introduced to him by petitioner No. 2 who did not get a free seat in the college and he was requested by this witness to take admission and a Bank Draft of Rs. 25,000/- was handed over to him by the petitioner No. 2 with further request to leave the seat later on taking Rs. 15,000/- The said student (Sudhakar Das) agreed to the proposal and this witness accompanied him as his brother to the Counselling Center along with the draft. During counselling when the authorities questioned the said Sudhakar Das, he told the truth and this witness also told the truth and prayed to be excused. Thereafter, the statement of this student (Sudhakar Das) was obtained and FIR was lodged along with the copy of the statement of the said student (Sudhakar Das) more or less similar is the statement of another witness Alitata Bhusan who has stated that he was persuaded by the petitioners to arrange students to take admission in the manner as stated above. Some other witnesses examined during investigation have also made similar allegations. Dr. Krushna Chandra Pradhan, who is the informant in the case has narrated the entire incident relating to the admission of Sudhakar Das. Another member of the Committee namely, Dr. Durga Charan Rath who was present during counselling has supported the statement of the informant. None of the witnesses has stated as to whether the seat vacated by such student admitted in the college on payment being made by the present petitioners was filled up later on or not. In the case diary the I.O. has recorded that by admitting students again to such vacancy the management was earning lakhs of rupees. There is absolutely no material to show that seat vacated by any such student was filled up later on by the management on receiving payment from undeserving student. Therefore, the prosecution case as placed before the Court is that the petitioners who were in management of the Engineering College requested some people to arrange students who had secured lower ranks in the Joint Entrance Examination for Engineering and persuaded them to take admission for which the management was prepared to pay. It is further alleged that later on such students who leave the college again receive some money. On the above admitted prosecution case, now the Court is called upon to decide as to whether the offence under Section 419 or 420 of the Penal Code is made out or not. For convenience, it will be better to refer to the said provisions which are quoted below :
“419. Punishment for cheating by personation : Whoevercheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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.”
This Court in the case of Ramesh Chandra Das v. Smt. Premalata Patra and Ors. reported in 1988 (2) OLR 254 dealing with the Section 420 of the Penal Code observed as follows :
“Applying the aforesaid tests to the allegations made in the complaint petition as well as in the initial statement of the complainant, I find that the ingredients of the offence of cheating within the meaning of Section 420, Indian Penal Code, have not at all been satisfied in order to bring a case within the ambit of Section 420, Indian Penal Code, it is necessary that there should be a direct connection between the false representation and the delivery of the property or the doing of something by the person deceived. It is further necessary that the act or the omission complained of should cause or is likely to cause damage or harm to the person or property. In order that a person can be convicted under Section 420, it has to be convicted under Section 420, it has to be established that not only that he has cheated someone but also that by doing so he has dishonestly induced the person who was cheated to deliver the said property etc. There must be a deception which must precede the fraudulent or dishonest inducement. The allegations against the accused No. 1 who happens to be the husband of the complainant in this regard are that he married the complainant by falsely representing that his first wife had been divorced. This would not constitute the offence of cheating. All subsequent allegations made in the complaint petition do not establish the offence of cheating. In this view of the matter, the order taking cognizance against the petitioner in Criminal Revision No. 146 of 1984 under Section 420, Indian Penal Code, cannot be sustained and is accordingly set aside.”
In the case of Jaladhar Swain and Ors. v. Smt. Suchitra Swain and Anr. reported in 1985 (1) OLR 603 the Court again discussed the requirements for proving the offence under Section 420 and observed as follows :
“To constitute an offence of cheating, it must be established that there was deception of a person, fraudulent or dishonest inducement of that person to deliver any property to any person or to consent to a property being retained by any person, or intention inducement of that person to do or omit to do anything causing or likely to cause hurt to that person in body, mind, reputation or property. The averments made in paragraph 8(n) of the complaint petition or the initial statement of the complainant recorded in this case do not indicate an iota of deception or any dishonest or fraudulent inducement made by accused No. 1 or any other accused persons, which made the complainant or her parents to part with Rs. 25,000/- at Cuttack. Further, there is no assertion to the effect that it was represented by the accused persons that the said money would be utilised in a family partnership firm. Necessarily, therefore, in my opinion, none of the ingredient of the offence of cheating has been established. The complainant has to establish in the present case that either she or her parents on her behalf, being induced or being deceived by the accused persons parted with Rs. 25,000/- on a clear representation that the amount would be used In the partnership firm and the complainant would be entitled to. any profit arising out of the same. There is no whisper that a sum of Rs. 25,000/- was parted with on any inducement having been emanated from accused No. 1 or for that matter from any other accused person. The averments made in paragraph 8(n) together with the initial statement of the complainant recorded in this case, taken in entirety and on their face value, do not constitute the offence of cheating and in that view of the matter, the cognizance taken of the offence under Section 420, Indian Penal Code, is invalid and must be quashed. This is an appropriate case coming within category (ii) of the categorisation made in the judgment of my learned brother Justice Behera in the reported case (supra) where the inherent power of the Court should be exercised to quash the cognizance as well as the criminal proceeding itself. I would accordingly hold that the learned Chief Judicial Magistrate committed gross error of law in taking cognizance of the offence under Section 420, Indian Penal Code, and therefore, set aside the same.”
The matter again came up for consideration in the case of Subodh Chandra Shome and Ors. v. Durga Madhab Das reported in 1985 (II) OLR 115 and observed as follows :
“The necessary ingredients of the offence of cheating are, a deception by the accused that deception must emanate from the accused, there must be dishonest inducement from the accused to the complainant, and believing on such inducement, the complainant parted with some property or valuable security and there must be a criminal intention of the accused when the transaction took place. If these ingredients are not satisfied then the offence of cheating cannot be said to have been committed. I have carefully examined the complaint petition and also the initial statement of the complainant recorded by the learned Magistrate. The sum and substance of the allegations made in the complaint petition are that the accused persons requested the complainant to act as their agent and to negotiate for sale of their land. The complainant did negotiate and finalised the sale. It was further agreed between the accused persons and the complainant that the complainant would purchase necessary stamp papers and look after the execution and registration of the sale-deed on their behalf and the accused agreed to pay the complainant a sum of Rs. 300/- per month as commission and should also reimburse all the expenses made by the complainant. Though the complainant did discharge his duties pursuant to the aforesaid agreement between the parties, but when the bill was submitted the accused persons did not pay. These allegations in my opinion, do not make out the offence of cheating as defined in Section 420 of the Indian Penal Code. The dispute between the parties as revealed from the allegations made in the complaint petition was essentially a matter of breach of agreement between the parties, and is, therefore, a dispute purely of civil of nature, squarely coming within the law laid down by the Supreme court in the case of Trilock Singh and Ors. v. Satya Deo Tripathy, AIR 1979 SC 850. In a recent decision of this Court in the case of Prafulla Mohanty v. Ashok Kumar Das, 55 (1983) CLT 105, the learned Judge of this Court examined the law on the point and quoted with approval a passage from the earlier decision of this Court in the case of M/s. Lord Match Industries, through its partne A. Pugalanthi and Ors. v. M.S. Selvasekaran, 55 (1983) CLT 24 wherein the distinction between “Breach of Contract” and “cheating” have been lucidly described in the following words :
“The distinction between mear breach of contract and cheating would depend upon the intention of the accused at the time of the alleged inducement which may be judged by his subsequent act, but of which the subsequent act is not the sole criterion. Mere breach of a contract cannot give rise to a criminal prosecution. Where a charge of cheating rests upon a representation, which is impugned as false and which relates, not to an existing fact but to a future event, it has to be shown that representation was false to the knowledge of the accused at the time when it was made. It is but little to the purpose to show that in fact, the representation has turned out to be untrue. An essential ingredient of the offence of cheating is the damage or harm caused or likely to be caused to the victim in body, mind, reputation, property. Generally speaking, a criminal offence consists of an act done by the accused with a specific criminal intent or state of mind constituting mens rea. It has been laid down by this Court, in S.B. Goenka v. Rajendra Prasad Agarwalla, 1982 Cri. LJ 1228 that every breach of contract does not constitute an act of cheating. Dishonest intention cannot be inferred from the mere fact that the accused person did not subsequently fulfil the promise. In the absence of materials for the satisfaction of the Magistrate that the accused person had any dishonest intention at the time the alleged promise or inducement was made, an offence of cheating cannot be said to have been established. In such cases, the dispute would be purely of a civil nature and the proceeding initiated in the criminal Court would be an abuse of process of the Court.”
5. From the analysis of the relevant section as well as the decisions referred to above, it is clear that in order to prove an offence under Section 419 or 420 of the Penal Code, the following are required to be prima facie proved :
(i) It must be established that there was deception of a person,
(ii) Fraudulent of dishonest inducement of that person to deliver any property to any person to consent to a property being retained by any person,
(iii) Intentional inducement of that person to do or omit to do anything causing or likely to cause hurt to that person in body, mind, reputation or property;
(iv) In order to prove offence under Section 419 it is further required to prove that all above acts are done by personation.
7. Coming to the allegations made in the present case the following allegations appear to be prima facie available on record. The petitioners were inducing some students to find out such students who have secured lower rank in the Joint Entrance Examination for Engineering and agree to take admission in Computer Engineering on payment being made by the petitioners with further understanding that such students thereafter vacate the seat on further payment. The first question comes for consideration is whether vacating a seat after taking admission would amount to delivery of any property to any person. In the case of Nrisingha Murari Chakraborty and Ors. v. State of West Bengal reported in AIR 1977 SC 1174 the word “property” appearing in Sections 420 and 415 of the Penal Code has been interpreted by the Apex Court in the following manner :
“We may make a reference to Ishwarilal Girdharilal Parekh v. State of Maharashtra (1996) 1 SCR 193 = (AIR 1969 SC 40) also. There the question for consideration was whether an order of assessment was “property” within the meaning of Section 420, IPC. The charge in that case was that the appellant dishonestly or fraudulently induced the income-tax authorities and obtained an assessment order for less income-tax than due. It was held that the order of assessment received by an assessee was “property”, since it was of great importance to the assessee, as containing a computation, of his total assessable income and as a determination of his tax liability. This Court also expressed the view that the word “property” did not necessarily mean that the thing of which delivery was dishonestly desired by the person who cheats “must have a money value or a market value, in the hand of the person cheated.” It was held that “even if the thing has no money value, in the hand of the person cheated, but becomes a thing of value, in the hand of the person, who may get possession of it, as a result of the cheating practised by him, it would still fail within the connotation of the term property in Section 420, IPC.” This decision also lends support to the view we have taken for, as has been stated, a passport is a valuable, document.”
The Bombay High Court in the case of Bhagwat Baburao Gaikwad and Anr. v. Baburao Bhaiyya Gaikwad and Anr. reported in 1994 CRI. LJ. 2393 dealing with Section 22 of the Penal Code has interpreted the meaning of moveable property in the following manner :
“The definition of “moveable property” given in the Penal Code, is basically meant for the provisions contained in the Penal Code itself. The Penal Code classifies the offences under various heads. Many of those heads deal with various items of moveable property. For instance, Chapter XII of Penal Code deals with offences relating to coins and government stamps. Chapter XIII deals with offences relating to weights and measures. Chapter XVII deals with moveables which could be stolen, robbed or extorted. These Chapters deal with tangible corporeal property. But there are offences categorised under some other heads which deal with intangible moveable property. Such are the offences relating to documents and property marks covered by Chapter XVIII of the Penal Code, Offences described in Chapter XVIII, however, do not use the word “moveable property” at any place for referring to the objects in respect of which the offences have been committed. When the framers of the Penal Code were aware of and were, in fact, intending to provide for defining and penalising the offences pertaining to moveable property, both tangible and intangible, the connotation of the expression moveable property ought to be restricted to certain types of property when the intention was to deal with tangible moveable property alone. This does not mean that the Penal Code, by itself, does not recognise the distinction between the tangible moveable property and intangible property at all. When the Penal Code itself does not do away with this distinction and when it purports to deal with tangible moveable property under certain provisions and intangible moveable property under other provisions, it could hardly be said that the definition of moveable property as corporeal property of every description was supposed to apply for all purpose. In itself, the aforesaid definition given in the Penal Code is restricted to certain objects.
The definition which was meant for punitive purpose could not be utilised for the purpose of determining the extent, scope and enforcement of the civil rights settled in proceedings under Chapter IX of the Code of criminal Procedure.
8. From the case of Nirsingha Murari Chakraborty (supra) it is clear that the word “property” does not necessarily mean that the thing of which delivery was dishonestly desired by the person who cheats must have a money value or market value in the hands of the person cheated. If the thing has no money value in the hands of the person cheated but becomes a thing of money value in the hands of the person who gets possession of it as a result of cheating, it would fall within connotation of the term “property”. So far as seat in an Engineering College is concerned, even accepting the entire prosecution allegation, it appears that an attempt has been made by the prosecution to prove that the seat has some money value but careful scrutiny of the prosecution allegation does not show any prima facie proof that the student who is stated to be cheated by taking admission on inducement and vacating the seat later on is deprived of any property which has money value. On the other hand, if the prosecution case is accepted, it appears that by taking admission and vacating the same at a later stage the person who is stated to be cheated earns money. Even if the case is analysed on the basis of the second part of the observation made by the Apex Court in the aforesaid case, there is absolutely no material on record to show that any such seat vacated by any such student had been filled up by the petitioners taking any amount of money from any other student. In absence of any material, even prima facie to prove the above requirements, I am of the view that the prosecution has not been able to prove the ingredients of cheating as defined in Section 415 of the Indian Penal Code. The ingredients of cheating having not been proved prima facie, the offence under Sections 419 and 420 automatically fall. I, therefore, do not find any material whatsoever on record even accepting the prosecution case entirely to support the impugned order taking cognizance for offences under Sections 419, 420 and 120-B of the Penal Code. Since I have already held that ingredients of Sections 419 and 420 of the Penal Code are absent in the present facts of the case, Section 120-B of the Penal Code automatically fails.
9. Before parting with the case since an objection was alsoraised by the learned Counsel for the State with regard to exerciseof inherent power under Section 482, Cr.P.C. it will be worthwhileto quote the observation made by this Court in the case of JaladharSwain and Ors. v. Smt. Suchitra Swain and Anr. (supra). Inparagraph 4 of the judgment dealing with Section 482 of the CriminalProcedure Code this Court held as follows :
“Before examining the rival contention raised by the learned counsel for the petitioners and opposite party No. 1, it is necessary to bear in mind the limitation in the matter of exercise of the inherent power to interferer with an order taking cognizance. It is an accepted principle of law that the High Court would exercise its inherent jurisdiction to quash a criminal proceeding in an appropriate case to prevent an abuse of the process of Court and to secure the ends of justice. No inflexible rule can be laid down but yet in some judicial decisions certain illustrations have been given to indicate where such inherent jurisdiction can be exercised. In the case of Satrughana Dalabehera and Ors. v. State, 1983 CLR, 303, my learned brother Justice Behera, has exhaustively dealt with this aspect. I would merely extract a portion of the said judgment :
Ordinarily a criminal proceeding initiated against an accused person must be tried under provisions of the Code and the High Court would be reluctant to interfere at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. Some of the categories of cases where the inherent jurisdiction to quash a proceeding can and should be exercised are (1) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged, (ii) where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged and (iii) where the allegations made against the accused person do constitute an offence alleged, but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. It is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and a case where there is legal evidence which, on its appreciation, may or may not support the accusation in question…”
10. In view of the discussions made above, the C.R.L.M.C. is allowed and the impugned order taking cognizance of offences under Sections 419, 420 and 120-B of the Penal Code is quashed.
