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Sandeep Kumar Saxena V/S Satpal

    Crl.M.C. No. 2887 of 2007

    Decided On, 17 September 2007

    At, High Court of Delhi

    By, THE HONORABLE JUSTICE: VIDYA BHUSHAN GUPTA

    For Petitioner: Ratnesh Bansal, Advocate



Judgment Text


1. This petition has been filed under Article 227 of the Constitution read with Section 482 Cr.P.C. seeking quashing of the impugned order dated 30th May, 2007 passed by Sh. V.K. Bansal, Addl. Sessions Judge, New Delhi and also seeking quashing of summoning order dated 4th August, 2006 passed by Ms.Vrinda Kumari, M.M. in criminal complaint No. 699/05.

2. The brief facts of the present case are that respondent filed a complaint case under Section 138 of Negotiable Instruments Act read with Section 420 and Section 34 of the Indian Penal Code against present petitioner and his parents alleging that respondent was having friendly relation with Satish Kumar Saxena, father of the petitioner who through his mobile phone called several times the respondent

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asking him for a loan of Rs. 40,000/-. On 5th June, 2004, father of petitioner met the respondent and stated that he is in the need of money. On 6th June, 2004 petitioner along with his parents visited the residence of the respondent at Kothi No. 467, Sector-6, Bahadurghar, Haryana and asked the respondent to give a loan of Rs. 45,000/-, the repayment of which was assured by petitioner as well as his parents and it was stated that the money is required only for one month. Respondent was also told that father of the petitioner is going to retire in the month of July, 2004 and when he gets all his retirement dues, the payment shall be made. The petitioner was also working in a good company and owned a Tata India car and he also assured the respondent that he will pay the loan on time or shall deposit the same in her mother's account. On this assurance on the part of the petitioner, the respondent gave the loan. The cheque was issued by mother of the petitioner which bounced on presentation and when respondent contacted the petitioner and his parents, they refused to make the payment.

3. After recording the statements of witnesses the Magistrate summoned the petitioner as well as the parents vide impugned order dated 4th August, 2006.

4. The present petitioner filed a revision against that order before the Addl. Sessions Judge and the same was dismissed vide order dated 30th May, 2007.

5. It has been contended by learned Counsel for the petitioner that impugned orders are based on conjectures and surmises and are bad in law and if there was any such dealing with the petitioner's parents, the civil court is only the court of jurisdiction and no such complaint is maintainable arising from a civil contract.

6. In support of his contentions the learned Counsel for the petitioner cited decisions of Karnatka High Court in M. Cheluviah v. Smt. Amruthamma 2005 (1) RCR 661 and that of Orissa High Court in Radharaman Sahu v. Trilochan Nanda : 70(1990)CLT788 and a decision of Apex Court in Kailash Verma v. Punjab State Civil Supplies Corporation and Anr. 2005 (1) RCR 727 contending that no criminal liability is made out at all and at the most the civil liability is made out.

7. The present petitioner has been summoned under Section 420 IPC. The learned Magistrate in the summoning order held that:

the evidence recorded show that all the three accuses induced the complainant to advance a loan of Rs. 45,000/- to them and to further deceive the complainant they issued a cheque of Rs. 45,000/- knowing fully well that the drawer of the cheque did not have sufficient funds in her account at that time.
8. Similarly, the Addl. Sessions Judge while dismissing the revision filed by the petitioner held that:

As per evidence available, the petitioner assured that if there was any problem in paying the loan amount he will pay the amount himself and it was on this assurance that the respondent gave the money to Sh. Satish Kumar Saxena.
9. Complainant in his statement has stated that petitioner assured him that if father or mother could not manage to refund the money, he will pay himself and on the given assurance of the petitioner, his mother issued a cheque in his favor. Further, complainant has stated that he deposited the cheque for encashment but it was returned with the remarks 'funds insufficient' and thereafter all the accused assured him and asked him to deposit the same cheque again and on the given assurance, he deposited the cheque and the same was returned with the above remarks again. Thereafter, complainant again deposited the cheque but the same was dishonoured.

10. Cheating has been defined in Section 415 of Indian Penal Code and the relevant portion of this Section read as under:

Section 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 any thing 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'.

Illustration:

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.

11. Ingredients for the offence of cheating are:

(i) Deception of any person;

(ii) Fraudulently or dishonestly inducing that person-

(a) to deliver any property to any person-
12. In the present case, the petitioner induced the complainant to make payment and on the assurance given by the petitioner, the complainant made the payment. Thus, prima facie, ingredients of cheating are fully established in this case.

13. The judgments cited by learned Counsel for the petitioner are not applicable to the facts of the present case.

14. Moreover, the present petition has been filed under Section 482 Cr.P.C. which reads as under:

482. Saving of inherent power of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
15. This provision of law envisages three circumstances under which the inherent jurisdiction may be exercised, namely -

i) to give effect to an order under the code,

ii) to prevent abuse of the process of court, and

iii) to otherwise secure the ends of justice.

16. Further to seek interference under this Section, three conditions are to be fulfilled, namely -

(i) the injustice which comes to light should be of a grave and not of a trivial character;

(ii) it should be palpable and clear and not doubtful; and

(iii) there exists no other provisions of law by which the party aggrieved could have sought relief.

17. Keeping in view these principles in mind, there is nothing on record to show that the courts below have abused the process of court at all nor there is any illegality or infirmity in their orders. All the pleas taken up here can be taken by the petitioner during the course of the trial and the present petition is wholly misconceived and devoid of any merits and thus is dismissed with costs of Rs. 5,000/-.

18. Petitioner is directed to deposit the costs with the trial court within one month from today, falling which the trial court shall recover the same in accordance with the law.

19. Copy of this judgment be sent to the trial court.

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