IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24327 of 2011 Sanjay Goswami, Son of Karam Chandra Goswami, resident of village- Baijnathpur, P.S.-Jogbani, District-Araria. ……..Petitioner. Versus The State of Bihar …………Opp. Party. For the petitioner: Mr. Girish Prasad Gupta, Adv. For the State: Mr. Amitesh Kumar, APP. ----------- 2 25.07.2011 Heard learned counsel for the petitioner and learned counsel appearing for the State. The petitioner has come against the order dated 19.3.2010 passed in Jogbani P.S. Case No. 7 of 2010 by the Chief Judicial Magistrate, Araria by which he has taken cognizance of the offence under Section 420 of the Indian Penal Code. One Ram Prasad Paswan, a Chowkidar gave his oral statement which was recorded by the Sub-Inspector of Police, Sunil Kumar on 16.1.2010 at 11.00 a.m. and on the basis of that the First Information Report was registered. The informant has alleged that he came to know at about 8.00 a.m. on 16.1.2010 that in the field of the petitioner “SHIVALING” of Lord Shiva automatically emerged and more than thousand people had assembled there. Upon this information, when the informant reached there, he found that the petitioner was catching hold of “Shivaling” by both hands and on inquiry, he disclosed that the Lord Shiva used to come in dream since last ten days and told him to dig him out. On such dictate of Lord Shiva, he dug his field in the morning wherefrom “Shivaling”, “Nand Jee” and container of water (Nadiya) was found from beneath. The informant, 2 however, alleged that the petitioner had brought “Shivalinga” form somewhere and by concocting a false story he had befooled public at large and cheated them. The police seized “Shivaling”, “Nand Jee” and container of water from field of the petitioner. The aforesaid case was investigated by the Police and on conclusion of investigation, the police submitted a charge sheet against the petitioner for having committed an offence under Section 420 of the Indian Penal Code. Thus, the petitioner was sent up for trial. The learned Chief Judicial Magistrate, Araria, on receipt of the charge-sheet along with case diary, found a prima facie case under Section 420 to be made out against the petitioner and thus, took cognizance of the offence which order is under challenge before this Court. It is submitted on behalf of the petitioner that the order taking cognizance of the offence is bad in the eye of law as according to him, even on admitted facts of the case no ingredient of the offence alleged is attracted. He further submits that befooling someone would never amount to cheating unless and until there is allegation of dishonest inducement to the persons so deceived to deliver any property. Here, in the present case, there is no such allegation and thus, the order taking cognizance is bad. It is also submitted that no one present at the place of 3 occurrence has alleged to have delivered any property to the petitioner. Learned counsel for the State submits that although there is no allegation of inducement to deliver any property to any person still on the basis of allegation, it can safely be said that it was because of a wrong rumour deliberately spread by the petitioner that large number of people assembled there and they were befooled of their religious sentiment and thus, offence of cheating would be attracted. After hearing the parties, I think it proper to quote Section 420 of the Indian Penal Code, which reads as follows:- “Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Thus, from a bare perusal of the offence as prescribed under section 420 of the IPC, it would appear that there are two essential ingredients of the offence under this section which are:- (i) Deceit, that is, to say dishonest or fraudulent mis-representation and (ii) Inducing the person so deceived to part with property. Further, offence of cheating has been defined under Section 415 of the Indian Penal Code, which reads as follows:- “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 4 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”. The section consists of two distinct parts:- The first part contemplates whereby the deception practiced upon the person, the accused dishonestly or fraudulently induces that person to deliver property to any person or to consent that any person shall retain any property. The second part, on the other hand, envisages whereby deception practiced upon a person, the accused intentionally induces that person to do or omit to do anything which he would not do or omit to do, if he were not so deceived and which act of omission cause or likely to cause damage or harm to that person in body, mind, reputation or property. Here, I would also like to mention that offence of cheating and dishonestly inducing delivery of property as defined under Section 420 of the Indian Penal Code has been made compoundable under Section 320 of the Indian Penal Code and the compounding can be done by the person cheated. In the present case, there is no allegation that the petitioner induced any one to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security. The only thing which is alleged is that he befooled large number of people by giving a wrong impression for personal gain. In my view even, on admitted facts of the case, no cognizable offence, much less, offence under Section 420 of the 5 Indian Penal Code would be attracted in the facts and circumstances of the case. Hence, allowing prosecution to continue, in my view, in the background of the facts would amount to an abuse of the process of the court and thus, I, hereby, set aside the order taking cognizance dated 19.3.2010 passed by the learned Chief Judicial Magistrate, Araria, in Jogbani P.S. Case No. 7/2010. This application stands allowed. Sanjeet/ (Ashwani Kumar Singh, J.)