* 1 * Cri.Revn.Appln.382/2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 382 OF 2000 Kamlakar Ratikant Bakare ] Age : 46, Shrirampur Police Station ] Shrirampur, District-Ahmednagar ] Applicant At present in Yerwada Central Prison ] Vs. 1. State of Maharashtra ] ] 2. Madhukar Ratikant Bakare ] Residing at 78, Rasta Peth, ] Pune-411 011. ] ] 2(a) Nitin Madhukar Bakare ] Flat No.23, Building No.A-1 ] Padmaja Park, Chaitraban Area, ] Near Lake Town, Katraj ] Pune-411 046. ] ] 2(b) Milind Madhukar Bakare ] Respondents B/203, Pinyak Sadicha ] Near MIT, Chaitanya Health ] Club Road, Poud Road, ] Kotharud, Pune-411 038. ] ] 2(c) Harshad Madhukar Bakare ] Flat No.20, Vishnu Vihar Building ] Kenjale Nagar, Bibavewadi Lulla Nagar, ] Bibavewadi, Pune-411 037. ] * 2 * Cri.Revn.Appln.382/2000 Mr. S.V. Kotwal h/f Mr. Nitin Jamdar, Advocate for the applicant. Mrs. S.D. Shinde, APP for State-respondent no.1. Mrs. Revti Mohite-Dere, Advocate for respondents no.2A to 2C. CORAM : SMT. R.P. SONDURBALDOTA, J DATE : 18th JUNE, 2010. JUDGMENT : 1. This proceeding is a classic example of how a person driven by personal vendetta can misuse the process of law to wreak vengeance upon his victim. 2. The facts leading to the proceedings are that, on 25th March, 1974 the applicant had applied for the post of Police Inspector by submitting application in the prescribed form. He was selected for the post on merit after clearing the written and oral tests conducted therefor. He also successfully completed the training for the post. About 10 years thereafter, original respondent no.2, his step-brother filed complaint with the Magistrate alleging that while applying for the post of Police Inspector, the applicant had given wrong information as regards his residential address and job status and thereby committed offences punishable under Section 420, 465 and 471 IPC. About 22 years after the alleged incident i.e. on 13th * 3 * Cri.Revn.Appln.382/2000 December, 1996 the learned Magistrate held the applicant guilty of the offences alleged and punished him with sentence of rigorous imprisonment for one month and fine of Rs.500/-. The applicant unsuccessfully challenged his conviction by preferring Criminal Appeal No.8 of 1997 to the District Court, Pune. The appeal was dismissed by the judgment and order dated 16th November, 2000, which decision is impugned in the present Criminal Revision Application. 3. The applicant, inter-alia, alleges that the impugned order is wrong, both in law and on facts. The complaint filed was neither by the person alleged to have been cheated nor by the person authorised by the person alleged to have been cheated. As such the complainant had no locus-standi to file the complaint. The person alleged to have been cheated i.e. the State of Maharashtra had not taken any action against the applicant. The complaint as filed and the record does not satisfy all the essential ingredients of the offence punishable under Section 420 IPC. 4. It has been the contention of the applicant that a third party on whom no deception has been practiced and one who has not sustained any pecuniary loss in consequence of the act of the * 4 * Cri.Revn.Appln.382/2000 accused cannot file complaint charging commission of offence punishable under Section 420 Indian Penal Code. During the course of arguments, before the learned District Judge, two decisions of learned Single Judge of this Court had been cited. The applicant relied upon decision in the case of Vijay Narayandas Rizwani vs. Dilip @ Dhanraj s/o Navalraj Rizwani and another, reported in 1996(1) Bombay Cases Reporter, page 322, which held that a third party unconnected with the deception cannot maintain complaint for the offence of cheating. The original complainant on the other hand relied upon the decision in the case of Shriram Krishnappa Asegaonkar vs. State of Maharashtra and another, reported in 1986 Maharashtra Law Journal, page 1004, wherein this court held that a complaint was maintainable in view of the general principle of criminal jurisprudence that anyone can set the criminal law in motion. The learned District Judge accepted the contention of the original complainant, to hold that the complaint as filed was maintainable. 5. The decision in case of Shriram Asegaonkar (supra), was on the application filed under Section 482 Cr.P.C. for quashing of process issued under Section 420, 468, 477-A read with Section 109 I.P.C. on * 5 * Cri.Revn.Appln.382/2000 the complaint alleging manipulation of records of the co-operative society by the accused to enable him to contest the election to the Board of Directors to which he was eventually elected. On a complaint made by the co-director about the fraud, an enquiry had been conducted under Section 78 of Maharashtra Co-operative Societies Act, 1960, pursuant to which the accused was removed from directorship. Thereafter the complainant who was a total stranger to the co-operative field and unconnected with the concerned co- operative society filed complaint against the accused, the maintenability of which was under challenge. The learned Single Judge of this Court rejected the contention of the accused on maintainability of the complaint holding that anyone can put the criminal law in motion unless the statute prescribes for an eligibility of the complainant as can be gathered from the provisions contained in Sections 195 to 199 of Cr.P.C. The learned Single Judge drew support in this connection from the decision of the Apex Court in the case of A.R. Antulay v/s. Ramdas Sriniwas Nayak and another, reported in AIR 1984 SUPREME COURT page 718, wherein, it was held that it is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except * 6 * Cri.Revn.Appln.382/2000 where the statute enacting or creating an offence indicates to the contrary. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The decision of learned Single Judge in the case of Shriram Asegaonkar has proceeded merely on the basis of the abovestated general principle of criminal jurisprudence and does not look into the specific provisions in the Penal Code as regards the alleged offence. This exercise was however, done in Vijay Rizwani s case, the second decision, before the learned Sessions ’ Judge. That decision also arose out of an application filed under Section 482 Cr.P.C., for quashing of criminal proceedings filed by third party alleging commission of offence punishable under Section 420 I.P.C. The relevant part of the judgment reads as follows : The ingredients of cheating as an offence under Section 420 “ of the Indian Penal Code are covered in section 415 of Indian Penal Code; viz; 1. Deception of any person. 2. (a) Fraudulently or dishonestly inducing that person (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property; or * 7 * Cri.Revn.Appln.382/2000 (b) intentionally inducing that person 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 is likely to cause damage or harm to that person in body, mind, reputation or property. It will be seen that there are two separate classes of acts which constitute offence. In the first place he may be induced fraudulently or dishonestly to deliver a property to any person or to consent that any person shall retain that property. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived. In the first class of cases, the inducing must be dishonest or fraudulent. In second class of acts inducing must be intentional but not fraudulent or dishonest. Section 420 applies in cases in which the property is transferred with the requisite act or acts described in section 415. The offence of cheating, however, is not committed to third party on whom no deception has been practiced and sustains pecuniary loss in consequence of accused s acts. ’ ” The judgment then refers to the decision of the Hon ble ’ Supreme Court in Hari Sao and another vs. The State of Bihar, reported in AIR 1970 SUPREME COURT 843, which arose out of the proceedings in which the appellant was charged with having cheated the Assistant Station Master of Sheonarayanpur Railway Station by dishonestly inducing him to make a railway receipt with false particulars which was capable of being converted into a valuable security. The accused had booked a consignment of 251 bags of dry chillies to Calcutta. The actual loading into the wagon was however 197 boxes of chaff. The accused were convicted of the offence * 8 * Cri.Revn.Appln.382/2000 punishable under Section 420 I.P.C. which conviction had been maintained by the High Court. In considering the appeal against conviction, the Hon ble Supreme Court considered the definition of ’ cheating under Section 415 I.P.C. to hold that to complete the offence under Section 415, it was not sufficient to establish the deception, but it also must be established that the deception was likely to cause damage or harm to the person deceived. In the absence of satisfaction of this ingredient, the offence of cheating could not be said to have been established. The relevant observations in the decision read as follows: Under section 415 of the Indian Penal code a person is “ said to cheat when he by deceiving another person fraudulently or dishonestly induces the person so deceived to deliver any property to him or to consent that he 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 was 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. There can be no doubt that the appellants had by deceiving the Station Master induced him to deliver a railway receipt which could be used as a valuable security, but assuming that the appellants thereby induced the Station Master to make out the railway receipt it will still have to be shown that the making out of the receipt was likely to cause damage or harm to the railway or the Station Master . ” The above decision which directly and specifically deals with the provision under I.P.C. creating the offence must prevail over the * 9 * Cri.Revn.Appln.382/2000 general principle of criminal jurisprudence stated in Antulay s case. ’ This is contemplated by the very judgment. The Apex Court states thus in Antulay s case Locus standi of the complainant is a concept ’ “ foreign to criminal jurisprudence save and except that where the statue creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision . ” 6. Since the offence of cheating can be complete only with establishment of damage or harm to the person deceived, which fact can be alleged and established only by such person, one of the essential ingredients of the offence would be lacking in the complaint filed by a stranger. Therefore the complaint filed by such a person would not be maintainable and the general principle of criminal jurisprudence mentioned above would not be applicable. The record of the present case, shows that the original complainant was a total stranger to the alleged act of deception. He neither suffered any damage or sustained any loss in consequence of the alleged act of the applicant. The State of Maharashtra, on whom the deception is allegedly practiced has not taken any action against the applicant despite receiving complaints from the original * 10 * Cri.Revn.Appln.382/2000 complainant. In the circumstance, the complaint as filed by the original complainant was not maintainable and its further prosecution was not in accordance with law. A Magistrate on receipt of a private complaint of such a nature, needs to send it to the Police for investigation under Section 156(3) Code of Criminal Procedure. In that circumstance, the private complaint would loose its original character and become a final report under Section 173 Code of Criminal Procedure. Even on merits, one can see that there is no substance in the complaint filed by the original complainant. The alleged act of deception on the part of applicant consisted of furnishing incorrect information to the State in his application for the post of Police officer. Clause 20 of the application related to a query whether the applicant was in Government service at the time the application was made. It was answered in the negative. According to the original complainant, the applicant at the relevant time was in the service of Food Corporation of India, which is a public sector unit. In that case, the applicant was required to submit the application through proper channel. It has been the contention of the applicant that at the time of making the application, he had resigned from the services of Food Corporation * 11 * Cri.Revn.Appln.382/2000 of India and as such was not in service. The second alleged deception was as regards residential address of the applicant. Clause 29 of the form of the application was about current “ address of the applicant. It was alleged that the applicant instead ” of stating his actual residential address had given the address of his sister. This has been explained by the applicant. In his evidence he stated that he was compelled to give this address as his residential address, because the original complainant, who was his step-brother and residing in the same house, used to take away the correspondence received at the address and the applicant could not take chance of loosing the communication that would be received in connection with his application for the employment. Therefore he had given the address of his sister for the purpose of correspondence. In these facts, no dishonest intention can be attributed to the applicant in giving the address different from the address of his actual residence. The record shows that there have been several civil and criminal proceedings initiated by the original complainant against the applicant. In the circumstances, the learned District Judge ought to have seen that the complaint filed by the original complainant was a mischievous complaint, completely made * 12 * Cri.Revn.Appln.382/2000 out of personal bias and vendetta to harass the applicant. 7. In all the above circumstances, the application is allowed. The impugned judgment and order dated 16th November 2000 is set aside. The appeal No. 8 of 1997 is allowed. The applicant is acquitted of the offences punishable under Sections 420, 465 and 471 Indian Penal Code. His bail bond shall stands cancelled. ( Smt. R.P. SondurBaldota, J.)