# Shailendra Singh v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 1256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-14
- **Case number:** Application U/S 482. No. 5947 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-singh-v-state-of-u-p-anr-49858
- **Pages:** 30

## Headnote

A. Criminal Law - Application under
Section 482 CrPC- order of revisional court
upholding the summoning order passed by
the
trial
court-
under
challenge-
proceedings arise out of complaint case
under Sections 420, 504 and 506 IPC-
issue of delay in filing the complainttransaction done in the capacity of an
employee of the company- no personal
liability.

B. Delay duly explained in the complaint
itself- entire prosecution story cannot be
disbelieved on the ground of delay- case is
not
of
civil
nature-incident
involves
criminality- applicant received Rs. 4 lakhs
in the name of his company for providing
land to the complainant-neither the land
was allotted nor the money was returned.
(Paras 13 and 14)

HELD:
4 All. Shailendra Singh Vs. State of U.P. & Anr.
1257
Even otherwise, the Hon'ble Supreme Court of
India in the case of State of H.P. Vs. Gian Chand
reported in (2001) 6 SCC 71 has opined that the
entire prosecution story could not be disbelieved
on the ground of delay. (Para 13)

To the submission made by the learned counsel
for the applicant that entire case is civil in
nature, this Court may record that this case is
not civil but criminal, in which the applicant
received four lacs rupees in the name of is
company for the purposes of providing land to
the complainant. However, the complainant was
neither allotted the land in his favour nor his
money was returned due to which Rs. 4 lacs of
the complainant is alleged to have been looted.
When the complainant demanded his money
from the applicant twice, he abused and
threatened him. Apart from the above, there is
no civil litigation pending between the applicant
and the complainant as the stage of civil
litigation has not been reached. This is a case of
breach of trust. (Para 14)
C. Section 420 IPC- necessary ingredients
explained-neither the land was allotted
nor
the
money
was
returned-
fine
distinction between breach of contract
and
offence
of
cheating-intention
to
defraud since inception of the transaction
is necessary-if necessary, the corporate
veil can be pierced-to ascertain liability.
(Paras 19 to 39)
Held:
Then in order to attract Section 420 I.P.C.,
essential ingredients are: (I) cheating; (ii)
dishonest inducement to deliver property or to
make or destroy any valuable security or
anything which is sealed or signed or is capable
of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making
inducement and which act of omission. (Para
19)

It is now well settled that the corporate veil can
in certain situations be pierced or lifted. The
principle behind the doctrine is a changing
concept and it is expanding its horizon as was
held in State of U.P. v. Renusagar Power Co. The
ratio of the said decision clearly suggests that
whenever a corporate entity is abused for an
unjust and inequitable purpose, the court would
not hesitate to lift the veil and look into the
realities so as to identify the persons who are
guilty and liable therefore. (Para 39)

D. Section 482 CrPC- appropriate to quash
proceedings at this stage- Magistrate has
merely issued the process against the
applicants-trial yet to begin-adjudication
on pure questions of fact-best done by
trial court-no pre-trial before the trialprima facie case made out against the
applicant- sufficient material to proceed
against
him-impugned
orders
upheld-
application dismissed. (Para 51)

Application dismissed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,927 of 99,375. This is a partial read: ask again with offset=39927 for what follows._

1256 INDIAN LAW REPORTS ALLAHABAD SERIES

27. In view of the aforesaid, this
Court finds that the submissions made by
the applicants' learned counsel call for
adjudication on pure questions of fact
which may adequately be adjudicated upon
only by the trial court and while doing so
even the submissions made on points of
law can also be more appropriately gone
into by the trial court in this case. This
Court does not deem it proper, and
therefore cannot be persuaded to have a
pre-trial before the actual trial begins. The
prayer for quashing the entire proceedings
is refused as I do not see any abuse of the
Court's process either.

28. In such a situation where the
applicants have instigated and created such
circumstances that the deceased was left
with no other option but to commit suicide
and perusal of the averments made in the
FIR as well as the statement of the
witnesses recorded by the I.O. and the
conduct of the applicants in a heinous
offence where a person had lost his life and
a special case where evidence is being
tempered for which action has already been
taken against the erring official, this Court
is of the opinion that the relief as prayed by
the applicants cannot be granted.

29. This Court, however, may clarify
that whatever is said in this judgment is
purely tentative and limited to the purpose
of judging the worth of the prayer to quash
proceedings as well as impugned orders. It
is and ought not be regarded by the Trial
Court as any kind of a comment or
evaluation about evidence, which is yet to
surface during trial. The truth of the
prosecution case has to be established
beyond doubt at the trial in accordance with
law. However, this Court is of opinion that
this is not a case, where the prosecution
ought to be scuttled at the threshold in the
exercise of powers under Section 482 of the
Code.

30. With the aforesaid observations,
the present application under Section 482
Cr.P.C. is, accordingly, dismissed.
----------
(2023) 4 ILRA 1256
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.03.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Application U/S 482. No. 5947 of 2023

Shailendra Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ramanand Gupta, Sri Harshit Gupta

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Application under
Section 482 CrPC- order of revisional court
upholding the summoning order passed by
the
trial
court-
under
challenge-
proceedings arise out of complaint case
under Sections 420, 504 and 506 IPC-
issue of delay in filing the complainttransaction done in the capacity of an
employee of the company- no personal
liability.

B. Delay duly explained in the complaint
itself- entire prosecution story cannot be
disbelieved on the ground of delay- case is
not
of
civil
nature-incident
involves
criminality- applicant received Rs. 4 lakhs
in the name of his company for providing
land to the complainant-neither the land
was allotted nor the money was returned.
(Paras 13 and 14)

HELD:
4 All. Shailendra Singh Vs. State of U.P. & Anr.
1257
Even otherwise, the Hon'ble Supreme Court of
India in the case of State of H.P. Vs. Gian Chand
reported in (2001) 6 SCC 71 has opined that the
entire prosecution story could not be disbelieved
on the ground of delay. (Para 13)

To the submission made by the learned counsel
for the applicant that entire case is civil in
nature, this Court may record that this case is
not civil but criminal, in which the applicant
received four lacs rupees in the name of is
company for the purposes of providing land to
the complainant. However, the complainant was
neither allotted the land in his favour nor his
money was returned due to which Rs. 4 lacs of
the complainant is alleged to have been looted.
When the complainant demanded his money
from the applicant twice, he abused and
threatened him. Apart from the above, there is
no civil litigation pending between the applicant
and the complainant as the stage of civil
litigation has not been reached. This is a case of
breach of trust. (Para 14)
C. Section 420 IPC- necessary ingredients
explained-neither the land was allotted
nor
the
money
was
returned-
fine
distinction between breach of contract
and
offence
of
cheating-intention
to
defraud since inception of the transaction
is necessary-if necessary, the corporate
veil can be pierced-to ascertain liability.
(Paras 19 to 39)
Held:
Then in order to attract Section 420 I.P.C.,
essential ingredients are: (I) cheating; (ii)
dishonest inducement to deliver property or to
make or destroy any valuable security or
anything which is sealed or signed or is capable
of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making
inducement and which act of omission. (Para
19)

It is now well settled that the corporate veil can
in certain situations be pierced or lifted. The
principle behind the doctrine is a changing
concept and it is expanding its horizon as was
held in State of U.P. v. Renusagar Power Co. The
ratio of the said decision clearly suggests that
whenever a corporate entity is abused for an
unjust and inequitable purpose, the court would
not hesitate to lift the veil and look into the
realities so as to identify the persons who are
guilty and liable therefore. (Para 39)

D. Section 482 CrPC- appropriate to quash
proceedings at this stage- Magistrate has
merely issued the process against the
applicants-trial yet to begin-adjudication
on pure questions of fact-best done by
trial court-no pre-trial before the trialprima facie case made out against the
applicant- sufficient material to proceed
against
him-impugned
orders
upheld-
application dismissed. (Para 51)

Application dismissed. (E-14)

List of Cases cited:

1. Sayeed Yaseer Ibrahim Vs St. of U.P. & anr.
reported in 2020 0 Supreme (SC) 1280

2. R. Nagendra Yadav Vs The St. of Telangana &
anr. reported in 2022 0 Supreme (SC) 1250

3. Randheer Singh Vs The St. of U.P. & ors.
reported in 2021 0 Supreme (SC) 664

4. Raghvendra Singh & ors. Vs St. of U.P. & anr.,
in Application U/S 482 No. 2300 of 2016 decided
on 11th August, 2022

5. St. of H.P. Vs Gian Chand reported in (2001)
6 SCC 71

6. Mahadeo Prasad Vs St. of West Bengal,
reported in AIR 1954 SC 724

7. Jaswantrai Manilal Akhaney Vs St. of Bom.,
reported in AIR 1956 SC 575

8. G.V. Rao Vs L.H.V. Prasad & ors., reported in
2000(3) SCC 693

9. Hridaya Ranjan Prasad Verma & ors. Vs St. of
Bih. & anr., reported in 2000(4) SCC 168

10. S.W. Palanitkar & ors. Vs St. of Bih. & anr.,
reported in 2002(1) SCC 241

11. Hira Lal Hari lal Bhagwati Vs CBI, New Delhi,
reported in 2003(5) SCC 257
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Devender Kumar Singla Vs Baldev Krishan
Singh reported in 2004 (2) JT 539 (SC)

13. Indian Oil Corporation Vs NEPC India Ltd.,
reported in 2006(6) SCC 736

14. Rajesh Bajaj Vs State NCT of Delhi, reported
in 1999(3) SCC 259

15. Vir Prakash Sharma Vs. Anil Kumar Agarwal
& anr., reported in 2007(7) SCC 373

16. Sh. Suneel Galgotia & anr.Vs St. of U.P. &
ors. reported in 2016 (92) ACC 40

17. United India Insurance Company Ltd. Vs
B.Rajendra Singh & ors., reported in JT
2000(3)SC.151

18.
Vice
Chairman,
Kendriya
Vidyalaya
Sangathan & anr. Vs Girdhari Lal Yadav, reported
in 2004 (6) SCC 325

19. Ram Chandra Singh Vs Savitri Devi & ors.,
reported in 2003(8) SCC 319

20. S.P. ChengalVaraya Naidu (dead) by L.Rs Vs
Jagannath (dead) by L.Rs & ors., reported in
AIR 1994 SC 853

21. St. of Mah. Vs Mayer Hans George reported
in AIR 1965 SC 722 (V 52 C 123)

22. Kartar Singh Vs St. of Pun. reported in
(1994) 3 SCC 569

23. R.P. Kapur Vs St. of Pun.; AIR 1960 SC 866

24. St. of Har. & ors. Vs Ch. Bhajan Lal &
ors.;1992 Supp (1) SCC 335

25. St. of Bih. & anr. Vs P.P. Sharma & anr.;
1992 Supp (1) SCC 222

26. Zandu Pharmaceuticals Works Ltd. & ors. Vs
Mohammad Shariful Haque & anr.; 2005 (1) SCC
122

27. M. N. Ojha Vs Alok Kumar Srivastava; 2009
(9) SCC 682

28. Mohd. Allauddin Khan Vs The State of Bih &
ors. reported in 2019 0 Supreme (SC) 454
29. Nallapareddy Sridhar Reddy Vs The St. of
Andhra Pradesh & ors. reported in 2020 0
Supreme (SC) 45

30. Rajeev Kaurav Vs Balasahab & ors. reported
in 2020 0 Supreme (SC) 143

31. St. of U.P. Vs Akhil Sharda & ors. reported in
2022 SCC OnLine SC 820

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. From the perusal of the certified
copy of the impugned order passed by the
revisional court enclosed as Annexure-7 to
the affidavit accompanying the present
application, it is apparent that the said order
has been passed on 16th January, 2023
but inadvertently, in the prayer clause of
this application it has wrongly been
transcribed as "16th January, 2022" in
place of 16th January, 2023.

2. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the material on record.

3. This application under Section 482
Cr.P.C. has been filed for quashing the
Judgement and order dated 16.01.2023
passed by learned Additional Sessions
Judge-I,
Lalitpur,
whereby
Criminal
Revision No. 90 of 2022 (Shailendra Singh
Vs. State of U.P. and another) filed by the
revisionist has been rejected upholding the
summoning order dated 14.02.2020 passed
by learned Additional Chief Judicial
Magistrate, Lalitpur passed in Complaint
Case No. 3983 of 2018 (Sandeep Awasthi
Vs. Shailendra Singh Bundela) under
Sections 420, 504, 506 I.P.C. Police Station
Taalbehat, District Lalitpur. The applicant
has further prayed for stay of the entire
proceedings of the aforesaid complaint
case.
4 All. Shailendra Singh Vs. State of U.P. & Anr.
1259

4. The crux of the allegations made in
the complaint is that opposite party no.2
had moved an application under Section
156(3) Cr.P.C. before the Chief Judicial
Magistrate, Lalitpur stating therein that the
complainant had very good relations with
the applicant and he disclosed him that he
works in the company in the name and
style of "Shubhalaya Greens 303 R.K.
Towar, M.P. in Bhopal", which provides
plot on a very low prices. Further he
offered him a plot measuring 20 x 70 yards
in Bhaurikal, Madhya Pradesh at 5,25,000/-
. Trusting on the proposal/offer given by
the applicant, the complainant made his
first payment of Rs. 50,000/- through
Cheque
no.
001669
Central
Bank,
Taalbehat, Lalitpur on 01.05.2015 in favour
of Shubhalay Mines and Developers Pvt.
Ltd., Central Bank Jail Road, Bhopal
(M.P.) (hereinafter referred as the 'company
of opposite party no.2") towards his
purchase of the land and applicant gave a
receipt bearing serial no. 901 dated
01.05.2015 to the complainant on behalf of
the company. It is further alleged that after
some time applicant again demanded Rs.
3,50,000/- out of remaining amount and
complainant issued another cheque bearing
cheque no. 891084 dated 12.05.2015 of
amount 3,50,000/- in favour of company.
Similarly,
complainant
invested
Rs.
4,00,000/- in the said project. For one year
several times the complainant contacted the
applicant on the phone for execution of the
sale-deed and he was assured by the
applicant that work is in progress and the
registry of the land will be done as soon as
possible. Your plot has been booked. Later
on the complainant came to know that the
applicant/opposite party had taken money
from several persons by cheating and
promising them to give a plot, after which
several calls were made by the complainant
but the applicant/opposite party did not
respond. Attaching the receipt and other
documents,
the
applicant
made
an
application before the Chairman, RERA
Bhavan at Bhopal and the Chairman said
that no transaction has been done by the
applicant Shailendra Singh. Under the
criminal conspiracy, the opposite party has
taken money by luring many persons and
did not return the money to anyone and a
new firm Shrimant Vinayak Infrastructure
has been formed by the applicant/opposite
party under the guise of that company, the
applicant/opposite party is doing similar
work. On 01.06.2018, the complainant
went to residence of opposite party and
talked about his plot after being very upset
and when he asked for his money back, the
applicant behaved indecently, abused him,
talked about usurping the money and
threatened to kill him. After that, the
complainant also sent a legal notice to the
applicant/opposite
party
through
an
Advocate. Neither the applicant replied to
the notice nor returned the money and there
was no contact with the applicant nor was it
known.

5. It is further alleged that on
13.08.2018 at around 10.00 am, the
complainant received information that the
applicant was at his home, then the
complainant along with Satish Litauria
Sanjay Srivastava went to the residence of
the applicant and demanded his money and
talked about the plot, then he abused him
along with his associates and refused to
give the money and said that your money
have usurped. He also threatened them that
if they demand their money or lodge any
report to the Police Station, he will kill
them. Just after, the complainant sent the
information about the aforesaid incident to
the concerned police station and he has also
sent his report through registry to the
Superintendent of Police, Lalitpur but no
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
action was taken, due to which the
complainant has filed the present complaint
against the applicant under Section 156 (3)
Cr.P.C.

6. After considering the facts and
circumstances of the present case the
Learned
Additional
Chief
Judicial,
Magistrate,
Lalitpur
summoned
the
applicant under section 420, 504, 506 IPC
vide
order
dated
14.02.2020.
Being
aggrieved by the aforesaid summoning
order dated 14.02.2020 applicant filed
criminal
revision
along
with
delay
condonation application before District-
Judge,
Lalitpur
wherein
he
briefly
explained
his
contention
regarding
misappropriation
of
money
with
complainant and said offence is made out
against applicant. The said revision was
admitted
and
the
delay
condonation
application was allowed by the court below
on 30.09.2022 and the court concerned also
issued notice to complainant to resolve the
controversy. However, vide judgement and
order dated 16.01.2023 applicant's revision
has been rejected by the District Judge,
Lalitpur. During the pendency of the said
revision Civil Judge Junior Division
(F.T.C.), Lalitpur issued non- bailable
warrant against applicant on 18.07.2022
and meantime the said court further
proceeded with the proceedings of Section
82 Cr.P.C. on 02.09.2022.

7. It is the case of the applicant that he
applicant was the employee of the company
and the cheques in question was issued by
the complainant in favour of company and
being
an
agent
the
applicant
only
communicated the complainant about the
company's offers and nothing more than
that. The applicant had never forced to
complainant to invest his money in
aforesaid company/project. It is further
stated that there is no forgery as alleged, is
made out against the applicant, inasmuch as
the applicant was completely unaware from
the alleged forgery which was committed
by the company. It was only on account of
being
employee
false
and
frivolous
complaint case has been registered against
him at a belated stage by means of an
application under Section 156 (3) Cr.P.C. It
is further submitted that entire disputed
amount has been duly received by the
company
and
the
company
is
not
impleaded as party in present complaint
case. Just on account of harassment
complainant
falsely
implicated
the
applicant in present case without any
cogent and clinching evidence. The entire
proceedings of the present case are nothing
but an abuse of process of law which is
liable to be quashed by this Court.

8. Submission of the learned counsel
for the applicant:

(i)
The
application
of
the
complainant (opposite party no.2 herein)
under section 156(3) Cr.P.C. came to be filed
in the Court of Chief Judicial Magistrate,
Lalitpur on 29.08.2018 after delay of 3 years
of making his first payment towards
company for which no plausible explanation
has been given.

(ii) The court below has treated the
aforesaid application as complaint case and
recorded the statements of the complainant
and his witnesses under Sections 200 & 202
Cr.P.C. In the statement recorded under
Section
200
Cr.P.C.,
the
complainant/opposite
party
no.2
has
reiterated the same version as unfolded in his
application under Section 156 (3) Cr.P.C.

(iii) Thereafter another person
namely Anil came into picture apart from
4 All. Shailendra Singh Vs. State of U.P. & Anr.
1261
the witnesses mentioned in the complaint
case and his statement has been recorded as
P.W.-1 before the court concerned under
section 202 Cr.P.C. in which he has
supported prosecution story. As per his
statement, he works at complainant's shop
for many years.

(iv) Statement of Ajit Kumar,
who was unknown person has been
recorded under section 202 Cr.P.C. as
P.W.-2 wherein he has reiterated the
version as unfolded in the complaint case.
The testimony of the P.W.2 is completely
unreliable and unsustainable because he
specifically alleged against the applicant
and his statement before the court appears
to be influenced by the complainant.
Moreover, complainant has not adduced
Satish Litoria and Sanjay Srivastava, who
are alleged to be the witnesses of complaint
and in place of them, the complainant has
produced another two new witnesses i.e.
Anil and Ajit Kumar only in order to
strengthen his case.

(v) entire case is civil in nature
wherein
company
in
question
misappropriates
the
money
of
the
complainant and for the recovery of
disputed
amount
complainant
should
institute a civil suit for recovery of 4 lacs
from the company but the complainant
opted criminal way to harass the applicant
even when applicant has no role to play in
the matter. In support of this submission,
learned counsel for the applicant has placed
on record the account statement of
company
and
copy
of
registration
certificate of the company which is
incorporated under the companies act, 1956
having its registered office in Madhya
Pradesh.

(vi) The aforesaid complaint has
been moved by the opposite party no. 2
with ulterior motive only for harassment of
the applicant meaning thereby entire
prosecution
story
seems
false
and
fabricated
and
is
initiated
only
for
harassing the applicant. The applicant has
not received any single penny from the
complainant and he resigned for the said
company in 2015 after serving four months
only therein.

(vii). The complainant/opposite
party no.2 has neither impleaded the
company in the complaint case as one of
the opposite parties nor filed any civil suit
for recovery of his earnest money and
therefore, no offence under Sections 420,
504, 506 I.P.C can be said to be made out
against the applicant.

In support of his case, learned
counsel for the applicant has placed
reliance upon the following judgments of
the Hon'ble Supreme Court as well as this
Court:

(a) Sayeed Yaseer Ibrahim Vs.
State of U.P. & Another reported in 2020 0
Supreme (SC) 1280;

(b) R. Nagendra Yadav Vs. The
State of Telangana & Another reported in
2022 0 Supreme (SC) 1250;

(c) Randheer Singh VS. The State
of U.P. & Others reported in 2021 0
Supreme (SC) 664; and

(d) Raghvendra Singh & 3 Others
Vs. State of U.P. & Another, in Application
U/S 482 No. 2300 of 2016 decided on 11th
August, 2022.
1262 INDIAN LAW REPORTS ALLAHABAD SERIES

On the cumulative strength of the
aforesaid,, the learned counsel for the
applicant submits that the applicant is an
innocent person, who has been falsely
implicated in the aforesaid case and he has
no criminal antecedents to his credit except
the present one. The Additional Chief
Judicial Magistrate, Lalitpur in a routine
manner has summoned the applicant vide
order dated 14.02.2020 to face trial under
Sections 420, 504, 506 I.P.C. against
which, the applicant preferred Criminal
Revision No. 90 of 2022 (Shailendra Singh
Vs. State of U.P. and another) which too
has been illegally rejected by the learned
revisional
Court
vide
order
dated
16.01.2022 without considering the factual
and legal aspects of the matter and
therefore. the impugned orders are liable to
be quashed by this Court. Apart from the
above, he also prays that since no case
under Sections 420, 504, 506 I.P.C. is made
out against the applicant as essential
ingredients of cheating are missing, entire
proceedings of the complaint case be
quashed.

9. Per contra, learned A.G.A. has
submitted that the impugned summoning
order has been passed after appraising the
evidence available on the face of record,
which order has been rightly upheld by the
learned revisional Court, therefore the
impugned orders are perfectly, legal just
and proper which calls for no interference
by this Court in exercise of powers
conferred under Section 482 Cr.P.C.
jurisdiction. It is further submitted that
from the perusal of the material on record
and looking into the facts of the case at this
stage it cannot be said that no offence is
made out against the applicants at this
stage. All the submissions made relate to
the disputed questions of fact, which cannot
be adjudicated upon by this Court under
Section 482 Cr.P.C. He also submits that it
is settled law that the evidence produced by
the accused in his defence cannot be looked
into by the Court, except in very
exceptional circumstances, at the initial
stage of the criminal proceedings. It is trite
law that the High Court cannot embark
upon the appreciation of evidence while
considering the petition filed under Section
482
CrPC
for
quashing
criminal
proceedings. It is clear from the law laid
down by this Court that if a prima facie
case is made out disclosing the ingredients
of the offence alleged against the accused,
the
Court
cannot
quash
a
criminal
proceeding. On the cumulative strength of
the aforesaid, learned A.G.A. urges that
offence under Sections 420,504 and 506
I.P.C. is made out against the applicants.
The present application under Section 482
Cr.P.C. is devoid of merit and the same is
liable to be dismissed by this Court.

10. I have considered the submissions
made by the learned counsel for the parties
and have gone through the records of the
present application under Section 482
Cr.P.C.

11. Seeing the fact that order dated
18th July, 2022 issuing non-bailable
warrants has been issued to the applicant as
also proceedings under Sections 82 Cr.P.C.
have been initiated against him by the court
below on 2nd September, 2022 and some
documents as to whether the applicant was
only an employee of the company or its
owner or one of its partner have not been
brought on record. Before proceeding on
merit of the orders impugned, this Court
was
issuing
notice
to
the
complainant/opposite party no.2 calling
upon him to file his counter affidavit along
with the counter affidavit of the State, but
the learned counsel for the applicant
4 All. Shailendra Singh Vs. State of U.P. & Anr.
1263
insisted the Court to decide this application
finally on that day itself. Therefore, this
Court has no other option but to decide the
same on the basis of materials whichever
are available on record.

12. So far as the submission made by
the learned counsel for the applicant that
there is a delay of three years in making
application under Section 156 (3) Cr.P.C.
by the complainant for which no plausible
explanation has been given, is concerned,
this Court may record that perusal of the
present complaint case itself explains such
delay. In the complaint it has been
submitted by the applicant that after giving
second cheque of Rs. 3,50,000/- to the
applicant for purchasing the plot as offered
by the applicant, the complainant contacted
the applicant time and again, and on every
occasion, the applicant avoided him. When
the complainant met the applicant, he has
taken time from the complainant ensuring
every time that soon the sale-deed of the
plot will be executed in his favour. The
complainant has came to know that like the
complainant, the applicant has also taken
money from various persons for giving plot
and he also avoided them and has not got
the sale-deed executed qua the plot in their
favour and he insisted him either to return
his money or get the sale-deed executed in
his favour, however, he was abused and
threatened. After that the complainant
made an application before the RERA
where he has not obtained any fruitful
order.
Thereafter,
he
made
various
applications before the concerned Police
Station and the Officer of the Police
Department, this time again his request for
lodging of the FIR in that regard has gone
unheard. Hence he has approached the
court below by filing an application under
Section 156 (3) Cr.P.C. Because of the
aforesaid reason, three years have elapsed
and delay has occurred in the present case
which is not on the part of the complainant.

13. Even otherwise, the Hon'ble
Supreme Court of India in the case of State
of H.P. Vs. Gian Chand reported in
(2001) 6 SCC 71 has opined that the entire
prosecution story could not be disbelieved
on the ground of delay. Relevant paragraph
12 of the aforesaid judgment is as follows:

"Delay in lodging the FIR
cannot be used as a ritualistic formula for
doubting
the
prosecution
case
and
discarding the same solely on the ground
of delay in lodging the first information
report. Delay has the effect of putting the
Court in its guard to search if any
explanation has been offered for the
delay, and if offered, whether it is
satisfactory or not. If the prosecution fails
to satisfactorily explain the delay and
there is possibility of embellishment in
prosecution version on account of such
delay, the delay would be fatal to the
prosecution. However, if the delay is
explained to the satisfaction of the court,
the delay cannot by itself be a ground for
disbelieving and discarding the entire
prosecution case. In the present case,
PW1, the mother of the prosecutrix is a
widow. The accused is a close relation of
brother of late husband of PW1. PW1
obviously needed her family members
consisting of her in-laws to accompany her
or at least help her in lodging the first
information report at the police station.
The incident having occurred in a village,
the approach of the in-laws of PW1
displayed rusticity in first calling upon the
father of the accused and complaining to
him of what his son had done. It remained
an unpleasant family affair on the next day
of the incident which was tried to be
settled, if it could be, within the walls of
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
family. That failed. It is thereafter only that
the complainant, the widow woman, left all
by herself and having no male family
member
willing
to
accompany
her,
proceeded alone to police station. She was
lent moral support by Ruldu Ram, the
village Panch, whereupon the report of the
incident was lodged. The sequence of
events soon following the crime and as
described by the prosecution witnesses
sounds quite natural and provides a
satisfactory explanation for the delay. It
was found to be so by the learned Sessions
Judge. The High Court has not looked into
the
explanation
offered
and
very
superficially recorded a finding of the
delay having remained unexplained and
hence fatal to the prosecution case. It is
common knowledge and also judicially
noted fact that incidents like rape, more so
when the perpetrator of the crime happens
to be a member of the family or related
therewith, involve the honour of the family
and therefore there is a reluctance on the
part of the family of the victim to report the
matter to the police and carry the same to
the court. A cool thought may precede
lodging of the FIR. Such are the
observations found to have been made by
this Court in State of Punjab Vs. Gurmit
Singh & Ors., (1996) 2 SCC 384 and also
in the case of Harpal Singh (1981) SCC
Crl. 208. We are satisfied that the delay in
making the FIR has been satisfactorily
explained and therefore does not cause any
dent in the prosecution case."

14. To the submission made by the
learned counsel for the applicant that entire
case is civil in nature, this Court may
record that this case is not civil but
criminal, in which the applicant received
four lacs rupees in the name of is company
for the purposes of providing land to the
complainant. However, the complainant
was neither allotted the land in his favour
nor his money was returned due to which
Rs. 4 lacs of the complainant is alleged to
have been looted. When the complainant
demanded his money from the applicant
twice, he abused and threatened him. Apart
from the above, there is no civil litigation
pending between the applicant and the
complainant as the stage of civil litigation
has not been reached. This is a case of
breach of trust.

The judgments relied upon by the
learned counsel for the applicant in support
of his aforesaid submission are not
applicable in the facts of the present case

In the case of Sayeed Yaseer
Ibrahim (Supra), the Apex Court has not
found any ingredient of Section 420 I.P.C.
The Apex Court in R. Nagendra Yadav
(Supra) has quashed the proceedings on the
ground that for the same dispute civil suit
was pending between the parties. In the
case of Randheer Singh (Supra), the
Hon'ble Supreme Court from the version of
the FIR and the charge-sheet submitted has
not found any case under Sections 420,
467, 468 and 471 I.P.C. being made out
against the accused. In Raghvendra Singh
(Supra), the Hon'ble Single Judge of this
Court has observed that the dispute
between the parties arose due to a forged
will and such case does not relate to
criminality.

15. Apart from the aforesaid two
submissions advanced by the learned
counsel for the applicant, the other
submissions raise disputed question of fact
and the correctness or otherwise of the
same cannot be examined or decided at this
pre-trial stage. This Court finds substance
in the submissions made by the learned
A.G.A. for the State in toto.
4 All. Shailendra Singh Vs. State of U.P. & Anr.
1265

16. Now this Court comes on the
issue of any cheating, fraud, deception,
dishonesty
being
committed
by
the
applicant in committing cheating upon the
complainant by taking Rs. 4 lacs in the garb
of purchase of a land.

17. Before coming to the merits of the
submissions and replies on the issue of
applicant
on
committing
cheating,
deception, fraud, it would be worthwhile to
reproduce Section 420 I.P.C., which is
cheating and defined in Section 415 I.P.C.
and the same are being quoted hereinbelow:

"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 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".

Explanation.--A
dishonest
concealment of facts is a deception within
the meaning of this section."

"420. Cheating and dishonestly
inducing delivery of property.- 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."

18. In order to attract allegations of
"cheating", following things must exist:

(i) deception of a person;

(ii) (A) fraudulent or dishonest
inducement of that person,

(a) to deliver any property to any
person; or,

(b) to consent that any person
shall retain any property,

(B) intentional inducing that
person to do or omit to do any thing,

(a) which he would not do or
omit if he was not so deceived, and,

(b) such act or omission causes or
is likely to cause damage or harm to that
person in body, mind, reputation or
property.

(Emphasis added)

19. Then in order to attract Section
420 I.P.C., essential ingredients are:

(I) cheating;

(ii)
dishonest
inducement
to
deliver property or to make or destroy any
valuable security or any thing which is
sealed or signed or is capable of being
converted into a valuable security; and,

(iii) mens rea of accused at the
time of making inducement and which act
of omission.
1266 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In Mahadeo Prasad Vs. State of
West Bengal, reported in AIR 1954 SC
724 it was observed that to constitute
offence of cheating, intention to deceive
should be in existence at the time when
inducement was offered.

21. In Jaswantrai Manilal Akhaney
Vs. State of Bombay, reported in AIR
1956 SC 575, Court said that a guilty
intention is an essential ingredient of the
offence of cheating. For the offence of
cheating, "mens rea" on the part of that
person, must be established.

22. In G.V. Rao Vs. L.H.V. Prasad
and others, reported in 2000(3) SCC 693,
Court said that Section 415 has two parts.
While in the first part, the person must
"dishonestly" or "fraudulently" induce the
complainant to deliver any property and in
the
second
part
the
person
should
intentionally induce the complainant to do
or omit to do a thing. In other words in the
first part, inducement must be dishonest or
fraudulent while in the second part,
inducement should be intentional.

23. In Hridaya Ranjan Prasad
Verma and others Vs. State of Bihar and
another, reported in 2000(4) SCC 168,
Court said that in the definition of
'cheating', there are set forth two separate
classes of acts which the person deceived
may be induced to do. In the first place he
may be induced fraudulently or dishonestly
to deliver any property to any person. The
second class of acts set forth in the section
is the doing or omitting to do anything
which the person deceived would not do or
omit to do if he were not so deceived. In
the first class of cases, inducement must be
fraudulent or dishonest. In the second class
of acts, the inducement must be intentional
but not fraudulent or dishonest. It was
pointed out that there is a fine distinction
between mere breach of contract and the
offence of cheating. It depends upon the
intention of accused at the time to
inducement which may be judged by his
subsequent conduct but for this, subsequent
conduct is not the sole test. Mere breach of
contract cannot give rise to criminal
prosecution for cheating unless fraudulent
or dishonest intention is shown right at the
beginning of the transaction, that is the
time when the offence is said to have been
committed. Therefore it is the intention
which is the gist of the offence. In order to
hold a person guilty of cheating it would be
obligatory to show that he had fraudulent or
dishonest intention at the time of making
the promise. Mere failure to keep up
promise subsequently such a culpable
intention right at the beginning, i.e, when
he made the promise cannot be presumed.

24. In S.W. Palanitkar and others Vs.
State of Bihar and another, reported in
2002(1) SCC 241, while examining the
ingredients of Section 415 IPC, the
aforesaid authorities were followed.

25. In Hira Lal Hari lal Bhagwati
Vs. CBI, New Delhi, reported in 2003(5)
SCC 257, Court said that to hold a person
guilty of cheating under Section 415 IPC it
is necessary to show that he has fraudulent
or dishonest intention at the time of making
promise with an intention to retain
property. The Court further said:

"Section 415 of the Indian Penal
Code which defines cheating, requires
deception of any person (a) inducing that
person to: (i) to deliver any property to any
person, or (ii) to consent that any person
shall
retain
any
property
OR
(b)
intentionally inducing that person to do or
omit to do anything which he would not do
4 All. Shailendra Singh Vs. State of U.P. & Anr.
1267
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,
anybody's mind, reputation or property. In
view of the aforesaid provisions, the
appellants state that person may be
induced fraudulently or dishonestly to
deliver any property to any person. The
second class of acts set forth in the Section
is the doing or omitting to do anything
which the person deceived would not do or
omit to do if he were not so deceived. In the
first class of cases, the inducing must be
fraudulent or dishonest. In the second class
of acts, the inducing must be intentional but
not fraudulent or dishonest."

(Emphasis added)

26. In Devender Kumar Singla Vs.
Baldev Krishan Singh reported in 2004
(2) JT 539 (SC), it was held that making of
a false representation is one of the
ingredients of offence of cheating.

27 . In Indian Oil Corporation Vs.
NEPC India Ltd., reported in 2006(6)
SCC 736 in similar circumstances of
advancement of loan against hypothecation,
the complainant relied on Illustrations (f)
and (g) to Section 415, which read as
under:

"(f) A intentionally deceives Z
into a belief that A means to repay any
money that Z may lend to him and thereby
dishonestly induces Z to lend him money, A
not intending to repay it. A cheats."

"(g). A intentionally deceives Z
into a belief that A means to deliver to Z a
certain quantity of indigo plant which he
does not intend to deliver, and thereby
dishonestly induces Z to advance money
upon the faith of such delivery. A cheats;
but if A, at the time of obtaining the money,
intends to deliver the indigo plant, and
afterwards breaks his contact and does not
deliver it, he does not cheat, but is liable
only to a civil action for breach of
contract."

28. The Court said that crux of the
postulate is intention of the person who
induces victim of his representation and not
the nature of the transaction which would
become decisive in discerning whether
there was commission of offence or not.
Court also referred to its earlier decisions in
Rajesh Bajaj Vs. State NCT of Delhi,
reported in 1999(3) SCC 259 and held that
it is not necessary that in the body of his
complaint, a complainant should verbatim
reproduce all the ingredients of the offence
which he is alleging, nor is it necessary that
the complainant should state in so many
words that the intention of the accused was
dishonest or fraudulent.

29. In Vir Prakash Sharma Vs. Anil
Kumar Agarwal and another, reported in
2007(7) SCC 373 it was held that if no act
of inducement on the part of accused is
alleged and no allegation is made in the
complaint that there was any intention to
cheat
from
the
very
inception,
the
requirement of Section 415 read with
Section 420 IPC would not be satisfied.
The Court relied on the earlier decisions in
Hridaya Ranjan Prasad Verma (supra)
and Indian Oil Corporation Vs. NEPC
India Ltd.(supra).

30. The aforesaid authorities have
been referred to and relied on in reference
to offence under Section 420 I.P.C. by a
Division Bench of this Court in Sh.
Suneel Galgotia and another Vs. State
of U.P. and others reported in 2016 (92)
ACC 40.
1268 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Apart from the above, this Court
has also noticed the other judgments of the
Apex Court, reiterating the aforesaid laws.

32. In the case of United India
Insurance Company Ltd. V. B.Rajendra
Singh
and
others,
reported
in
JT
2000(3)SC.151, considering the fact of
fraud, the Apex Court held in paragraph 3
as under :