IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPLICATION NO.595 OF 2005 (U/s 482 Of Cr.P.C.) Bhola & others …………Applicants Versus State of Uttaranchal & another …………Respondents Dated: July 16, 2010 Sri Vinod Sharma, Adv. for the applicants Sri Amit Bhatt, Addl. GA for the State/respondent no.1 Sri Deependra S. Patni, Adv. i/b Sri Ramji Srivastava, Adv. for respondent no.2 HON. DHARAM VEER, J. This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the Criminal Case No.2250 of 2003, Jitendra Virmani Vs. Ajay Kumar Jaiswal, U/s 138 of the Negotiable Instruments Act, 1881 [hereinafter to be referred as the Act] and u/s 420 of the Indian Penal Code, 1860 [hereinafter to be referred as IPC], pending before CJM, Dehradun. Heard learned counsel for the parties and perused the material on record. In brief, the facts of the case are that the respondent no.2-Jitendra Virmani filed a complaint against the present petitioners and co-accused Ajay Jaiswal with the allegations that in the month of May 2002, the petitioners along with the co-accused had come to his house for providing him financial assistance to the co- accused Ajay Kumar Jaiswal, however the complainant expressed his inability for the same. But on the repeated requests of all the petitioners and co-accused, the complainant agreed to give Rs.1.25 lacs. It is further stated that on 29.5.2002, co-accused Ajay Jawaswal and 2 petitioners Smt. Sampatti Devi and Smt. Asha Devi had come to the complainant and requested with folded hands to pay Rs.1.25 lacs and the complainant asked co-accused Ajay Jaiswal to get the receipt of the amount typed and signed it and duly affix the revenue stamp on it as token of receipt of the amount. Then the said receipt was signed by accused Ajay Jaiswal after receiving Rs.1.25 lacs in cash on 29.5.2002 in presence of two witnesses, namely, Harbans Virmani and Surender Wason. In lieu of money received, a Cheque No.653298 dated 29.7.2002 for Rs.1.25 lacs was issued by accused Ajay Jaiswal in favour of complainant. When the said cheque was presented in the bank on 26.8.2002 for encashment, that Cheque was dishonored. On 9.9.2002, counsel for the complainant sent a legal notice to the accused Ajay Jaiswal, which was served upon him on 11.9.2002. But even when the payment was not made, the complaint was filed against the petitioners and co-accused on 23.10.2002. After hearing learned counsel for the parties and other evidence on record, learned CJM, Dehradun vide order dated 17.12.2002 summoned the accused Ajay Jaiswal U/s 138 of the Act while the petitioners were summoned u/s 420 of IPC. Hence, the instant petition. Learned counsel appearing for the petitioner argued that on the basis of the averments made in the complaint, there is no offence made out against the petitioners. Even not a single allegation has been made in the complaint, which may constitute any offence of cheating against them. It is relevant to mention the definition of Cheating, as defined under Section 415, which reads as under: - “Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to 3 consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do 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".” From a bare perusal of the complaint, it does not reveal that any of the ingredients of the Cheating, as quoted above, are made out against the petitioners. However, the ingredients of Section 138 of the Act are made out that too only against the co-accused Ajay Jaiswal, who is not the petitioner in this petition. Thus, for the reasons as aforesaid, the C482 petition is allowed. Order dated 17.12.2002 passed by the CJM, Dehradun, summoning the petitioners u/s 420 IPC as well as further proceedings of Criminal Case No.2250 of 2003, so far as it relates to the petitioners only, is quashed. However, it is clarified that the proceedings u/s 138 of the Act against the co-accused Ajay Jaiswal shall continue as per the order dated 17.12.2002 pending before CJM, Dehradun. Interim order dated 12.9.2005 is vacated accordingly. (Dharam Veer, J.) July 16, 2010 Rdang