IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 113/2006 Nachhatar Singh …….Petitioner Versus State of Uttaranchal & Anr. …….Respondents July 23, 2010 Hon’ble Dharam Veer, J. Heard Mr. Sandeep Tandon, Advocate for the petitioner and Mr. Amit Bhatt, Addl. GA for the State. None appeared for the respondent no. 2 despite being served personally. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioner has prayed for quashing the summoning order dated 22.5.2004 passed by the Addl. Civil Judge 1st (Jr. Div.)/J.M., Dehradun in Complaint Case No. 1331 of 2004 (Old No. 14/2004), Manish Kumar v. Ravindra Pal Singh & Ors. under Section 420 IPC. Facts, in brief, are that the respondent no. 2 lodged a complaint against the petitioner and other co-accused before the Court of CJM, Dehradun stating that Ravindra Pal Singh and Davindra Pal Singh are brothers who induced the complainant/respondent no. 2 that they can get him a job in foreign country which will cost about Rs. 3,20,000/-. The complainant agreed to the offer for his better future. On 1.3.2003, when the complainant met Ravindra Pal Singh and Davindra Pal Singh at their residence, they asked him to give Rs. 3100/- for obtaining the NOC from the Income-tax Department. The complainant gave them Rs. 3100/- as well as his passport. On 31.3.2003, they informed the complainant that the said NOC was obtained and now they need to send the money to the petitioner Nachhatar Singh in Ludhiana and Mukesh in Delhi so that further process of obtaining the VISA and tickets could be completed. The complainant gave Rs. 1,00,000/- to Ravindra Pal Singh on 5.5.2003 who told him that this money would be sent to Nachhatar Singh in Ludhiana and he will make the arrangements for sending the complainant to Korea. On 15.6.2003, Ravindra Pal Singh again took Rs. 70,000/- from the complainant. He also paid Rs. 50,000/- on 15.7.2003 for the tickets from Mukesh Setia Travels. Thereafter he was told that tickets for his round journey to Korea have been booked and he had to go there in the night of 3/4.9.2003. Thereafter on 28.8.2003, Ravindra Pal Singh again took Rs. 1,00,000/- from the complainant and in lieu thereof he gave him a cheque of equal amount stating that it may be encashed in case he failed to provide him the job in Korea and further stated that in that case rest of the amount i.e. Rs. 2,20,000/- shall be paid to him later on after returning from Korea. The complainant reached at the Indira Gandhi International Airport on 3.9.2003 at 8 pm. Ravindra Pal Singh came there at 10.30 pm along with another person, about whom the complainant suspected that he might be Nachhatar Singh. Thereafter the complainant and Ravindra Pal Singh boarded the flight of Bankok and reached there at 12.05 in the night of 3/4.9.2003 and from Bankok they took another flight and reached Korea where they were stopped by the authorities at the airport itself. The authorities alleged Ravindra Pal Singh that he is a fraud who visits Korea on the pretext of his medical treatment and the person who comes with him from India for his help, he used to leave him in Korea. Thereafter they were deported to India in the morning of 5.9.2003 and they reached Delhi on the same day. Ravindra Pal Singh told the complainant that Nachhatar Singh had cheated him and further assured that he would return the money to the complainant after reaching Dehradun. They reached Dehradun in the same night. Thereafter whenever the petitioner demanded money from Ravindra Pal Singh and Davindra Pal Singh, they used to make some excuse. Thereafter he deposited the said cheque of rupees one lakh earlier issued by Ravindra Pal Singh under his instructions but it was dishonoured by the bank for want of sufficient fund. Thereafter petitioner gave notice to Ravindra Pal Singh but the money was not paid to the complainant. His passport is also in the possession of Ravindra Pal Singh which could be misused. He also alleged that Ravindra Pal Singh wanted to cheat him since the very beginning. The 2 statement of complainant under Section 200 CrPC was recorded and thereafter the case was transferred to the Court of Additional Civil Judge 1st (Jr. Div.)/JM, Dehradun and the said court passed the summoning order dated 22.5.2004 taking cognizance of the offence against the petitioner under Section 420 IPC. Learned Counsel for the petitioner submitted that there is no direct allegation against the petitioner in the complainant or in the statement which may constitute an offence under Section 420 IPC. I find force in the argument of learned Counsel inasmuch as the complainant himself has nowhere alleged that he ever met the petitioner or personally gave any money to him. No conversation whatsoever had taken place between the petitioner and the complainant. It was Ravindra Pal Singh and Davindra Pal Singh who had assured him to give employment in foreign country and the complainant gave all the money either to Ravindra Pal Singh or Davindra Pal Singh. It was Ravindra Pal Singh who had given him the cheque of rupees one lakh and had assured for full refund of money in case of failure to provide the promised job to the complainant. Petitioner never assured him for any job. The complainant had only expressed his doubt that the person who had come along with Ravindra Pal Singh at the airport at Delhi in the night of 3/4.9.2003, might be Nachhatar Singh and this fact further goes to reveal that the complainant had never actually met the petitioner. There is no evidence against the petitioner to prove the offence of cheating against him. A ‘cheat’ has been defined under Section 415 IPC which is reproduced 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 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 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”. 3 Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” From a bare reading of the definition of a cheat quoted above as well as on perusal of the complaint, statement recorded under Section 200 CrPC and other evidence available on the record, it is apparent that the ingredients of cheating are not attracted against the petitioner. Even if the allegations made in the complaint, statement of the complainant under Section 200 CrPC and other evidence available on record are taken at their face value and accepted in their entirety, they do not prima facie constitute any offence or make out a case against the petitioner. Therefore, the summoning order dated 22.5.2004 is not justified and correct in respect of the petitioner and is liable to be set aside. For the reasons recorded above, the petition is allowed. The impugned summoning order dated 22.5.2004 passed by the Addl. Civil Judge 1st (Jr. Div.)/JM, Dehradun in Complaint Case no. 1331 of 2004, Manish Kumar v. Ravindra Pal Singh & Ors. thereby summoning the petitioner under Section 420 IPC is hereby quashed in respect of the petitioner only. Interim order dated 17.2.2006 stands vacated. (Dharam Veer, J.) 23.7.2010 PRABODH 4