IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPLICATION NO.862 OF 2005 (U/s 482 Of Cr.P.C.) Soban Singh …………Applicant Versus State of Uttaranchal & another …………Respondents Dated: July 26, 2010 Sri Pankaj Purohit, Adv. for the applicant Sri Amit Bhatt, Addl. GA for the State/respondent no.1’ Sri RP Nautiyal, 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 summoning order dated 13.9.2005 passed by the J.M. Rudraprayag in Criminal Case No.313 or 2005, Pooran Singh Vs. Sobhan Singh, U/s 420 IPC, as well as against the judgment and order dated 28.10.2005 passed by the Sessions Judge, Rudraprayag in Criminal Revision No.14 of 2005, Soban Singh Vs. State & another. 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 filed a complaint in the court of J.M. Rudraprayag with the averments that the petitioner, who is a contractor, took a contract in 1996 of Guest House of the Zila Panchayat at Kedarnath, whose cost was Rs.10.00 lacs. In the month of November 1996, the petitioner had come to the complainant and asked him to become a partner in the said contract and demanded Rs.25,000/- for the purpose of security of that contract. In November 1996 the petitioner had received Rs.2.17 lacs as payment of the said contract from the Zila Panchayat out of which Rs.70,000/- was scheduled to be divided equally between the complainant & the petitioner but the petitioner did not pay Rs.35,000/- to the complainant. The petitioner even did not pay back the security amount of Rs.25,000/- as given by the complainant and thus, the petitioner himself grabbed Rs.60,000/-. On 2 18.6.1997 the petitioner had also given in writing to the complainant in the presence of the witnesses Ram Singh Bisht and Ram Chandra Singh that he would pay Rs.60,000/- to the complainant. On 1.2.2005, the complainant had gone in the house of the petitioner at Jaggi Bagwan where the petitioner asked him to meet at 10 AM at Sati Lodge. On 7.2.2005 at 10 AM, when the complainant went at Sati Lodge at Rudraprayag, he came to know that the petitioner even did not come there. With these averments, the complaint was filed and the statement of complainant Puran Singh Rana was recorded u/s 200 Cr.P.C. while Ram Singh Bisht was examined u/s 202 Cr.P.C. On the basis of these statements, the complaint lodged by the respondent no.2 was dismissed by the J.M. Rudraprayag vide order dated 16.3.2005. Against the said order, the respondent no.2 preferred a revision which was allowed by the Sessions Judge Rudraprayag vide judgment and order dated 30.7.2005, whereby the order dated 16.3.2005 was set aside with the directions that the concerned Magistrate shall apply his mind to the facts of the case afresh and then pass any appropriate order according to law. Thereafter, the J.M. Rudraprayag vide order dated 13.9.2005 summoned the petitioner u/s 420 IPC, against which the revision was preferred by the petitioner which was also dismissed vide judgment and order dated 28.10.2005 by the Sessions Judge, Rudraprayag. Assailing the orders dated 13.9.2005 and 28.10.2005, this petition has been filed. Learned counsel for the petitioner submitted that on the basis of the averments made in the complaint, no offence of Cheating is made out against him. I find substance in this argument. Cheating has been defined u/s 415 IPC, which reads as under: - “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 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 contents of the complaint filed by the complainant, no ingredient of Cheating, as mentioned above, is made out. Rather the contents of the complaint constitute civil dispute. 3 Hence, the summoning order passed by the learned Magistrate on the basis of the complaint is absolutely not correct and justified. I am fortified in my view with the verdict of judgment of Hon’ble Apex Court in the case of Hotline Teletubes and Components Ltd. & others Vs. State of Bihar & another reported in 2005 SCC (Cri) 515, paragraph 2 of this judgment is quoted as below: - “2. This appeal by special leave has been filed by the appellants against the order passed by the Patna High Court, refusing to quash their prosecution under Sections 406 and 420 of the Indian Penal Code (for short “IPC”). In the complaint petition, it has been alleged that the complainant supplied goods to the accused persons, but they failed to pay the price therefor. There is no whisper in the complaint that at the very inception of the contract between the parties, there was any intention to cheat. It appears from a bare perusal of the complaint that it is a case of purely civil liability and no criminal offence is disclosed, much less offences either under Sections 406 or 420 IPC. So far as the High Court is concerned, it has not considered this aspect of the matter, but has refused to quash the prosecution observing that it was a fit case where parties should take steps for settlement. In our view, allowing such prosecution to continue would amount to an abuse of the process of court and to prevent the same, it would be just and expedient to quash the same.” Thus, on the basis of the above said facts and circumstances of the case as well as in light of the dictum of the Hon’ble Apex Court in the case of Hotline Teletubes (Supra), I am of the considered view that the ingredients of Cheating is apparently missing in this case and hence, the offence punishable u/s 420 IPC is not made out on the basis of the averments made in the complaint and even no allegation was there that there was any intention of cheating by the petitioner against the complainant before entering into the said contract between the parties. For the reasons as aforesaid, C482 petition is allowed. The impugned orders dated 13.9.2005 passed by the J.M. Rudraprayag and 28.10.2005 passed by the Sessions Judge, Rudraprayag as well as the entire proceedings in pursuance of Criminal Complaint Case No.313 of 2005 are hereby quashed. (Dharam Veer, J.) July 26, 2010 Rdang