Ram Surat Ram (Maurya) ORDER
Ram Surat Ram (Maurya), J.
1. Heard Sri Indra Deo Mishra, for the applicant and Sri Rajeev Lochan Shukla, for contesting opposite party-2.
2. This application under Section 482 Cr.P.C. has been filed for quashing the summoning order passed by Additional Chief Judicial Magistrate, dated 02.01.2018, passed in Complaint Case No. 3144 of 2017 Santara @ Shanti Devi v. Narendra Prasad and others, under Section 406, 420, 467, 468 IPC, PS Luxa, district Varanasi, as well as entire proceeding of this case.
3. Santara @ Shanti Devi (opposite party-2) lodged an FIR (registered as Case Crime No. 8 of 2017, under Section 406, 420 IPC, PS Luxa, district Varanasi) on 17.01.2017, against (i) Manoj Kumar (ii) Smt. Parmila Devi (iii) Dinesh Kumar (iv) Abhishek Kumar Singh (v) Vivek Kumar Singh (vi) Mahendra Pratap Singh (vii) Rajendra Kumar Singh and (viii) Naresh Prasad Singh. It has been alleged in FIR that the complainant was married to Bhai Lal, resident of village Bind, tahsil Kerakat, district Jaunpur and had two sons and one daughter. Her husband died in February 2000. Since then she was living with her son in Allahabad. She inherited plots 288, 292, 298, 337, 338, 339, 340, 363, 869, 871, 872 (total area 2.934 hectare) of village Andika, district Azamgarh, plots 1086 and 1120 (total area 1.315 hectare) of village Sulemapur, district Azamgarh and plot 199 (area 0.130 hectare) of village Meerpur, district Azamgarh from her father. Above named accused used to look after her aforementioned agricultural holdings and she had full faith upon them. Narendra Kumar Singh and Rajendra Prasad Singh took her from Allahabad to Varanasi in August 2016 under a conspiracy on the pretext that her land was being acquired by government for road widening and she had to execute a sale deed in favour of government. From Varanasi, they took her to tahsil Phulpur district Azamgarh, where they obtained her photos and thumb impressions on certain papers, in the garb of execution of the sale deed in favour of the government. After about one and a half months they again took her to Varanasi and opened a joint account at Union Bank of India, Godauliya Branch, Varanasi, in which they got their names entered as co-account holder and assured her that the amount of compensation would be deposited in the Bank. In the meantime, they again took her to tahsil Phulpur and obtained her thumb impressions on various papers. They sent Rs. 6 lakhs in November, 2016 to her and said this was part payment of compensation; remaining compensation would be deposited in her account in Bank. Later on they refused to attend her telephone. Then on suspicion, she got inspection of record made and came to know that the accused got a gift deed dated 05.08.2016 executed of plots 298, 337, 338, 339, 340, 363, 869, 871, 872 (total area 2.005 hectare) of village Andika, district Azamgarh, in their favour. Although she got compensation of Rs. 69,86,400/- for the land acquired by government for road widening on 15.10.2016 but apart from Rs. 6 lakhs, remaining amount was divided among the accused without her knowledge and consent.
4. The police after, investigation submitted Final Report No. 1 of 2017, on 15.07.2017, on the ground that Narendra Kumar Singh deposited entire amount of the compensation in the Bank, in account of opposite party-2, on 06.02.2017 and 07.02.2017, which was withdrawn by her. So far as gift deed was concerned, it was a dispute of civil nature.
5. On the notice being issued of Final Report No. 1 of 2017, Santara @ Shanti Devi (opposite party-2) filed a protest petition on 07.10.2017. After hearing the parties, Magistrate by order dated 14.11.2017 rejected the final report and permitted the complainant to treat FIR as complaint case and registered it as Complaint Case No. 3144 of 2017. Magistrate recorded statements of Santara @ Shanti Devi on 25.11.2017 under Section 200 Cr.P.C. and Rajesh Kumar Singh on 01.12.2017 and Rachana Singh on 16.12.2017 under Section 202 Cr.P.C. Magistrate vide order dated 02.01.2018, found that the complaint and the evidence disclosed offence and summoned the accused, named in FIR. Hence this petition has been filed.
6. The counsel for the applicant submitted that so far as the money deposited in Union Bank of India, Godauliya Branch, Varanasi, relating to compensation of opposite party-2, is concerned, entire amount has been deposited in her account on 06.02.2017 and 07.02.2017, by the accused which was withdrawn by her. The applicant was not a co-account holder with opposite party-2 in the Bank. If Naresh Prasad Singh, co-account holder had withdrawn any amount from the joint account of opposite party-2 and deposited in the account of the applicant, then it cannot be said that the applicant had committed any offence. Santara @ Shanti Devi voluntarily executed gift deed dated 05.08.2016 in favour of the applicant and other co-accused and got it registered before Sub-Registrar, Phulpur, Azamgarh. She has now filed O.S. No. 894 of 2017, for cancellation of the gift deed, which is pending before Civil Judge (Junior Division) (Haveli) Phulpur, Azamgarh, where its validity has to be adjudicated. Dispute between the parties is of civil nature, in relation to gift deed. During pendency of civil suit, criminal proceeding is not maintainable. The property gifted under the gift deed dated 05.08.2016, situates at village Andika, tahsil Phulpur, district Azamgarh. Gift deed was registered at the office of Sub-Registrar, Phulpur, district Azamgarh. No part of alleged offence was committed within territorial jurisdiction of Additional Chief Judicial Magistrate, Court No. 5, Varanasi. He has no jurisdiction to take cognizance in the complaint of opposite party-2. Entire proceeding of the complaint is an abuse of process of the Court, totally without jurisdiction and is liable to be quashed.
7. I have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Hridaya Ranjan Prasad Verma v. State of Bihar, MANU/SC/0223/2000 : (2000) 4 SCC 168, has held that on a reading of the Section 415 IPC 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 fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
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 of 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 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."
8. In Arun Bhandari v. State of U.P., MANU/SC/0020/2013 : (2013) 2 SCC 801, has held that scanning the definition of "cheating" the Court opined that there are two separate classes of acts which the persons 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 fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
9. A perusal of the allegations made in the FIR as well as statements of witnesses, shows that it discloses commission of the offence and cannot be said to a dispute of civil nature only. Magistrate has not committed any illegality in passing summoning order, and taking cognizance in the case.
10. So far as territorial jurisdiction is concerned, Some relevant provisions of Criminal Procedure Code, 1973, are quoted below:-
Section-177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
Section-178. Place of inquiry or trial.-
(a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
Section-181. Place of trial in case of certain offences.- (1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found.
(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.
(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property.
(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to the offence was received or retained, or was required to be returned or accounted for, by the accused person.
(5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property.
Section-184. Place of trial for offences triable together.- Where-
(a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of Section 219, Section 220 or Section 221, or
(b) the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of Section 223,
the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences.
Section-218. Separate charges for distinct offences.- (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.
(2) Nothing in sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223.
Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.
11. Section 181(4) provides that offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to the offence was received or retained, or was required to be returned or accounted for, by the accused person. Allegation in the FIR and statements of the witnesses was that money deposited in Bank account of Union Bank of India, Godauliya Branch, Varanasi, was misappropriated by the accused without her consent and knowledge. Varanasi court has jurisdiction to try the offence in this respect. Whether the applicant had connived for committing offence with main accused is a question of fact and could be decided after taking evidence. Entire proceeding of criminal complaint is not liable to quashed at this stage. Charge in respect of obtaining gift deed fraudulently would be framed separately under Section 218 Cr.P.C. It would be open for the applicant to raised question of jurisdiction to try that charge. However at this stage it cannot be said that entire proceeding before Additional Chief Judicial Magistrate, Varanasi, is without jurisdiction
12. In view of the aforesaid discussion, entire proceeding of Complaint Case No. 3144 of 2017 Santara @ Shanti Devi v. Narendra Prasad and others, under Section 406, 420, 467, 468 IPC, PS Luxa, district Varanasi, pending before Additional Chief Judicial Magistrate, Varanasi is not liable to be quashed. The application under Section 482 Cr.P.C. is dismissed.
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