w w w . L a w y e r S e r v i c e s . i n

Swami Dhirendra Brahmachari v/s Shailendar Bhushan

    Criminal Miscellaneous (Main) Appeal No. 2063 of 1991

    Decided On, 04 January 1994

    At, High Court of Delhi


    For the Appearing Parties: B.D. Batra, Gajendra Kumar, Mira Bhatia, Advocates.

Judgment Text


(1) VISHWAYATAN Yogashran (herein referred as Yogashram) is a society registered under the Registration of Societies Act, 1860 with its registered office at Ashoka Road, New Delhi. The petitioner is its Managing Trustee. On August 18, 1989 an advertisement was inserted by the Yogashram in the Hindustantimes inviting applications both from male and female candidates for admission to its one year Yoga training course which was to commence from September 15, 1989 at Vishwayatan Yogashram, Katravaishnavi Devi, jandk. Since the said advertisement is at the centre storm of the whole matter, let me reproduce the same. It runs as under:-

"applications from Male and Female candidates are invited for admission to One Year Yoga Training Course commencing from 18th Sept. 1989 at Vishwayatan Yogashram, Katra Vaishnavi Devi (J and K). The maximum number of candidates to be enrolled in this course will be 100. 15% seats are reserved for Scheduled Caste and 7-1/2% for Scheduled Tribe candidate. . . Age is relaxable for candidates belonging to this community. The course will coverall aspects of Higher Yoga, viz. (i) Theoretical/practical at Katra Vaishnavi Devi, (ii) Yoga Therapy in Yoga Hospital at Jammu, and (iii) Advanced Yogic Research in well equipped laboratories at Mantalai (J and K). Qualifications: (i) Graduate from a recognised University or Candidates passed Higher/senior Secondary Exam. The successful candidates who have joined training after senior secondary will be awarded Diploma certificate and may be absor bed in middle level schools and those who have joined after graduation will he awarded Degree and may be absorbed in Higher/ Senior Secondary Schools, (ii) Sound Health, (iii) Upper age limit for the above Yoga course is 25 years. Candidates already passed One Month/three Months/six Months Diploma Course in Yoga from any recognised institution and are employed or unemployed can also apply and in their case age can be relaxed. Desirable. Knowledge of Sanskrit/ Hindi and English languages. Lodging and Tution fee free. Messing charges will be Rs. 400. 00 per month. Messing charges can be relaxed upto 25%. 50% or 75% taking into consideration the cases of poor talented candidates only. Candidates selected for training will deposit RS. 1,000. 00 as caution money refundable on completion of the course to the successful candidates who may be absorbed all over India in Kendriya Vidyalays, Schools of States, Union Territories, Delhi Administration and N. D. M. C. New Delhi according to New Education policy of Govt. of India and also in the Hospitals as the Govt. of India intends to introduce Yoga there in shortly. Applications on plain paper indicating (1) Name (in block letters), (2) Father's/husband's name, (3) Date of Birth, (4) Address (in block letters), (5) Qualifications, (6) Whether SC/st (7) Are you employed? If so give name of the office, post held and total emoluments drawn, (8) Any other information should reach to the Director Vishwayatan Yogashram, Ashok Road, New Delhi latest by 25th August, 1989 accompanied by a recent passport size photograph and a self-addressed 0. 60 paise stamped envelope. "

(2) CONSEQUENT upon this advertisement number of candidates applied and some of them were even selected and admilted. It may be mentioned that all the selected candidates had deposited RS. 1,000. 00 each as caution money. The Course started on September 15, 1989 at Katra Vaishnavi Devi. However, it was later revealed that it was actually not recognised. This led to the lodging of the First Information Report by one of the students namely Shalinder Bhushan. It was alleged that he and other successful candidates had been falsely made to believe that the Course was recognised by the Ministry of Education and Social Welfare, government of India, though it was not and that on account of deception so practiced, the complainant and the other students were cheated of Rs. 1,000. 00 each which were deposited by them as caution money and that even otherwise their time and energy were wasted. The complaint so lodged, as already noticed, led to the recording of First Information Report against the petitioner under section 420 of the Indian Penal Code. Consequent upon the completion of the investigation challan was filed under section 173 of the Code of Criminal Procedure and admittedly the proceedings were pending before the Metropolitan Magistrate at the time of the filing of the present petition for quashing of the proceedings.

(3) MR. B. D. BATRA, advocate, who has appeared for the petitioner, has pressed for the relief claimed on the ground that the course in question was actually recognised by the Ministry of Education and Social Welfare (Government of India) and that consequently the petitioner could not be taken to have cheated any one of the successful candidates. In support my attention was particularly drawn to two letters, one of which is of May 17, 1990 issued by the Government of India, Ministry of Human Resource Development (Department of Education) under the signatures of one S. K. Grover, Assistant Educational Adviser and addressed to the Station House Officer, Police Station Parliament Street. The relevant portion of that letter runs as under:-

"according to the available information, the institution was running training courses of one month and three months duration during the period when it was being assisted by this Ministry. Since the institution was getting financial assistance from this Ministry for various recurring and nonrecurring items of expenditure including training programmes, it may be inferred that these training courses enjoy de-facto recognition by this Ministry. This de-facto recognition has not been withdrawn by this Ministry subsequently. "

(4) THE second latter is also from the Government of India, Ministry of Human Resource Development (Department of Education) and was issued under the signatures of K. P. Talwar, assistant Educational Adviser. The relevant portion of the said letter runs as follows:-

"as explained in para 2 of my letter of even number dated the 19th August, 1985 addressed to your predecessor Sri Riazud Din, both of these institutions namely, G. S. College of Yoga and C. S of the Kaivalyadham, S. M. Yoga Mandir Samiti Lonavala and the Vishwayatan Yoga Ashram Teacher Training Centre, Katra Vaishanavi Devi (Jandk) having been treated as national level institutions for training of teachers in Yoga, are being financially assisted by the 'central Government, whereas the G. S. College of Yoga and C. S. has been in receipt of Central Government grants on cover-the-deficit basis from this Ministry, the Vishwayatan Yogashram Teacher Training Centre, is receiving similar grants from the Union Ministry of Health and Family Welfare. Both of these institution are attracting teacher trainees from different Statesuts of the country. The very fact that both the institutions have been recognised by the Central Government for financial assistance on regular grant-in-aid also through their respective Diploma Courses implies that their teacher training course in Yoga stands recognised by the Central Government. The teacher training courses of these two institutions, therefore, enjoy de facto recognition from the Central Government if not de jure. As such, these two institutions maybe treated on a separate footing and their diploma in Yoga treated as an approved qualification for recruitment of Yoga teachers in educational institutions vis-a-vis the other Yoga institutions which are offering various types of Yoga training courses. Further since these two institutions are not receiving financial assistance from the respective State Government the later will not accord any such recognition to their training programme. It is precisely for this very reason that the Kendriya Vidalaya Sangathan and Delhi Administration itself have accepted their Diploma in Yoga as an approved qualification while making recruitment of Yoga Teacher in their respective schools in the recent past. "

(5) HOWEVER, on the other hand it was argued on behalf of the State that the two letters referred to above do not represent the correct position and that in fact the course was never recognised by the Government of India, Ministry of Education and Social Welfare (Department of Education) and in this respect my attention was particularly drawn to the statements of Ms. Renuka Mehra, Deputy Educational Adviser, Government of India, Ministry of Human Resource Development (Department of Education) and Mr. P. N. Khatri, Desk Officer, University Grants Commission. The statements were recorded under section 161 of the Code of Criminal Procedure. While Ms. Mehra has stated that the course is not recognised by the Government of India, Ministry of Education and Social Welfare (Department of education), the statement of Mr. P. N. Khatri goes to show that the course is not recognised even by the University Grants Commission. In this respect the letter written by Ms. Renuka Mehra, Deputy Educational Adviser dated June 12, 1990 is also not without significance. It runs as under:-

"subject: Recognition of training courses run by the Vishwayatan Yogashram. Reference note, dated June 6, 1990 from Shri Maluk Singh, Investigating Officer, Parliament Street Police Station, New Delhi, on the subject mentioned above, it is clarified that the Ministry of Human Resources Development does not accord recognition to degrees/diplomas/certificates awarded by educational institutions, although they might be in receipt of financial assistance from this Ministry for implementation of various programmes. Recognition of degrees/diplomas/certificates is the responsibility of the concerned University, Board of Secondary Education or State Government/union Territory Administration. This has been clearly stated in the final para of this Department's note, dated May 17,1990. The grant of financial assistance by the Central Government does not in any way mean that recognition has been accorded to the degrees/certificates/diplomas awarded by the institutions who are in receipt of financial assistance. The one year diploma/degree courses conducted by Vishwayatan Yogashram have not been accorded recognition by this Department. "

(6) SINCE my attention was also drawn to the press release by the Press Information Bureau, Government of India dated May 29, 1990 relating to this very matter and since it is also not without importance, I feel tempted to reproduce it also. It is to the following effect:.-

"department of Education under the Ministry of Human Resources Development has clarified that the Yoga Courses both in Degree and Diploma in Vishvayatan Yoga Ashram run by Swami Dhirendra Brahmchari at Katra (Jammiu and Kashmir) has not been accorded recognition by the Government of India. As such, the advertisement in a section of the press by Vishvayatan Yoga Ashram, Katra, Vaishnodevi (Jandk) recently brought to the attention of Govt. and which had claimed that it is recognised by the Ministry of Education and Social Welfare is false and misleading. According to the information furnished by Vishvayatan Yoga Ashram, the institution is conducting One Year Diploma Course in Yoga. The institutions and universities granting recognised degrees and diplomas are required to be established cither by an Act of Parliament or an Act of State Legislation or under Section 3 of the UGCAct,1956. Since the Yoga Ashram has not been established under any of these three provisions, it is not empowered to grant any degree or diploma. It is further clarified that since Certificates, Diplomas or Degrees given by the Yoga Ashram are not recognised, the question of absorbing candidate acquiring these qualifications from the Vishvayatan Yoga Ashram in the Kendriya Vidyalays or Govt. Schools in various States/union Territories does not arise. Reference in the advertisement claiming availability of these facilities for those acquiring these qualifications is also baseless. Recently a delegation of Yoga Students' Association called on the Minister of Stale for Human Resource Development, Shri Chimanbhai Mehta and apprised him of their problems due to the misleading advertisement on account of which, a number of students have come to face inconvenience and hardship. It is further clarified that although Government of India in the then Department of Education had approved financial assistance prior to 24th May, 1977 and had given no objection for the Vishayatan Yoga Ashram to conduct Yoga teachers' training programmes, they have not recognised any of the Diploma or Degree Course run by this institution as already stated. "

(7) THAT the press release reproduced above was issued by the Government of India, Ministry of Human Resource Development (Department of Education) is borne out from a letter of June 1, 1991 issued under the signatures of one Mr. A. Banerjee, Deputy Secretary (S) which says:-

"the S. H. O. , Police Station, Parliament Street, New Delhi. "sub: Recognition of Training Courses run by Vishvayatan Yoga Ashram, I am directed to refer to your letter dated 1-6-90 on the subject noted above and to confirm that the Press Release was issued by this Ministry. A copy of the draft of the Press Release is enclosed herewith. "

(8) I have reproduced the documents above since both the sides insisted upon referring to them. However the truth remains that after the completion of the investigation the challan has already been filed and the learned trial court is seized of the matter. This being the position should I, at this stage, interfere? The Supreme Court says in State of Bihar vs. P. P. Shurma 1992 Suppl. (1) SCC 222 at page 252:-

"we are of the considered view that at a stage when the police report under section 173 of the Code of Criminal Procedure has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction. "

(9) I do feel that the petition deserves to be dismissed on the basis of the above noted observations of the Supreme Court alone. However, since elaborate arguments were addressed by the learned counsel for the parties and as, despite the clear dictum of the supreme Court, they insisted upon making submissions on the basis of the First Information Report and the documents referred to above, which, of course, form part of report under section 173 of the Code of Criminal Procedure, let me, though not without reluctance, proceed to deal with the submission that no prima facie case of cheating is made out.

(10) THE ingredients required to constitute the offence of "cheating" under section 415 are:-

" (i) There should be fraudulent or dishonest inducement of a person by deceiving him. (ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any. property; or (b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and (iii) In cases covered by (ii) (b), the act of commission

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should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. " (11) IT would be noticed that though each part is independent of the other, both the parts do have a common feature and it is that there must be deceit practiced by the accused upon the victim. Generally speaking, "deceiving" is to lead into error by causing a person to believe what is false or to disbelieve what is true and such deception may be by words or by conduct. A fraudulent representation can be made directly or. indirectly. The case of the prosecution before me is that the petitioner by knowingly making afalse assertion that the course was recognised by the Government of India, Ministry of Education and Social Welfare (Department of Education) induced unwary students to apply and obtain admission and to pay RS. 1,000. 00 each as caution money, and thereby cheated the students. This is a case which is clearly borne out from the First Information Report as well as from the evidence collected during investigation and since there is evidence to the effect that the course had never been recognised and that students had actually parted with RS. 1,000. 00 each on the basis of the fraudulent misrepresentation and since the deceit was preceded by the payment of Rs. 1,000. 00 by. each student, it cannot be said the ingredients required to constitute the offence of "cheating" under section 415 are missing. (12) FOR the reasons recorded above, I find no merit in the petition. The same is hereby dismissed. However, it is made clear, by way of caution, that nothing said in this order shall be read as an expression of opinion on the merits of the case.