Case Note & Summary
The applicant, Nasir Mohammed Khan, an advocate by profession, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) challenging the order of issuance of process against him in RCC No. 561 of 2016 passed by the learned Judicial Magistrate First Class, Ahmednagar. The respondent, Nadeem Nazir Ahmed Shaikh, had filed a private complaint against the applicant and eight others for offences punishable under Sections 406, 409, 417, 418, 420, 465, 468, 469, 471 read with 34 of the Indian Penal Code, 1860 (IPC). After recording verification of the complainant, the learned Magistrate issued process only against the applicant under Section 420 IPC, while dismissing the complaint against the other accused and under other sections. The applicant contended that the complaint was false, no specific role was attributed to him, and the ingredients of cheating were not made out. The alleged document relied upon by the complainant was claimed to be false and fabricated. The applicant had made inquiries with the Notary, who informed that his register had been destroyed. The applicant argued that the complaint did not disclose any offence and the Magistrate erred in issuing process. The court heard both sides and perused the record. The complainant alleged that he met the applicant at the Sub-Registrar's office, and the applicant suggested a plot and informed him that the plot was under litigation but would be cleared soon. The agreement to sell was executed before a Notary Public and not registered. The court found that the complainant was aware of the litigation and voluntarily entered into the agreement. There was no deception or dishonest intention from the inception. The court held that the essential ingredients of Section 420 IPC were not satisfied, and the order issuing process was liable to be quashed. The application was allowed, and the order of issuance of process against the applicant was set aside.
Headnote
A) Criminal Law - Cheating - Section 420 IPC - Ingredients - For an offence under Section 420 IPC, the complainant must establish that the accused induced him to deliver property by deception, and that the accused had dishonest intention from the inception. Mere breach of contract or failure to perform does not constitute cheating. (Paras 1-3) B) Criminal Procedure - Issuance of Process - Section 204 CrPC - Prima Facie Case - The Magistrate must be satisfied that there is sufficient ground for proceeding. If the complaint on its face does not disclose any offence, the order issuing process is liable to be quashed. (Paras 1-3) C) Criminal Law - Quashing of Proceedings - Section 482 CrPC - Inherent Powers - The High Court can quash proceedings to prevent abuse of process of court. Where the allegations do not make out any offence, the proceedings can be quashed. (Paras 1-3)
Issue of Consideration
Whether the order of issuance of process against the applicant under Section 420 of the Indian Penal Code, 1860 (IPC) is sustainable in law when the complaint does not disclose the essential ingredients of cheating.
Final Decision
The application is allowed. The order of issuance of process against the applicant in RCC No. 561 of 2016 passed by the learned Judicial Magistrate First Class, Ahmednagar is set aside.
Law Points
- Ingredients of Section 420 IPC
- Prima facie case for issuance of process
- Inherent powers under Section 482 CrPC
- Quashing of criminal proceedings
