Whether failure to pay Mobile postpaid user charges amounts to offence of cheating U/S 420 of IPC?

 The prosecution case as against the petitioner as per Annexure 1 report is that, he, after having obtained a mobile postpaid connection in his name, failed to discharge his liability for user charges for a period of 5 months from 21.7.2006 to 21.11.2006. The allegation is that the petitioner incurred a gross monetary liability of ` 97,678.5/- for the period and after making a part payment of ` 10,580/-, he kept the balance in arrears. The default on the part of the petitioner, according to the prosecution, amounts to an offence of cheating punishable under Section 420 of IPC.

3. The petitioner's case is that the transaction in question is based on an agreement between the parties and therefore the alleged liability under the transaction is purely of civil nature. In as much as what is made out is only a civil liability out of the transaction in question, the petitioner seeks the consequential criminal proceedings in C.C. No. 1518/2008 pursuant to the Annexure 1 final report, to be quashed.

5. On marshaling the materials on record, I find that the transaction involved as between the parties is one arising out of a civil dispute. The purported liability of the petitioner seems to have arisen from breach of promise or agreement other than a breach followed by any dishonest intention to cheat the de facto complainant. Mere breach of trust or agreement will not by itself amount to a criminal offence under Section 420 IPC. In order to make out an offence under Section 420, the prosecution has to show that the dishonest intention to cheat existed at the time when the alleged promise in question was made. That legal proposition does not match the materials on record as well as the allegations made out through the Annexure 1 report. Consequently being satisfied that what is involved in the present case is one of civil dispute between parties, I hold that this seems to be a fit case where the criminal proceedings pending before the Additional Chief Judicial Magistrate Court, Ernakulam requires to be quashed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 1813 of 2014

Decided On: 08.03.2019

Abdul Hakkem P.V. Vs.  State of Kerala and Ors.

Hon'ble Judges/Coram:

T.V. Anil Kumar, J.

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Whether offence can be registered against brothers if they get property mutated in their names excluding sisters?

 In the present case, it is admitted that six brothers excluded seven sisters and got the land mutated in their name. It is also admitted that the present petitioners sold 1/6th portion of the land by registered sale deed. The peculiar facts in the present case are that the brothers from the very beginning knew that there were seven sisters also. No consent was taken from the respondent No. 2. She was never informed and surreptitiously the land was mutated in the names of all the six brothers. The contention of the learned counsel for the petitioners that the land was sold by them, their names were recorded as owner of 1/6th share, however, the fact remains that revenue records are not records of title. When Anandibai died in the year 2000, 1/13th share devolved upon respondent No. 2. Mere entry in the revenue record do not extinguish the right already accrued to respondent No. 2, therefore, the argument raised by learned counsel for the petitioners that the land was sold by them and they were owner of 1/6th share is not acceptable. In the revenue proceedings, petitioner No. 2 was one of the party. She acted on behalf of the petitioner Nos. 1 and 3 before the Police Station, However, now the plea is taken independently by petitioner No. 1 that he was not party to the proceedings, and therefore, he had no knowledge about the revenue proceedings. In view of the aforesaid, the contents of the FIR shows that there was a dishonest intention on the part of all the six brothers. At this stage, no case is made out for quashment of the FIR and related proceedings using extra ordinary jurisdiction conferred on this Court under Section 482, Cr.P.C.

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

M. Cri. C. No. 547 of 2016

Decided On: 21.09.2016

 Mukesh Nigam and Ors. Vs. State of Madhya Pradesh and Ors.

Coram:Alok Verma, J.

Citation: 2017 CRLJ 620

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How to prove essential ingredients of offence of forgery?

The condition precedent for an offence under sections 467, 468 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the accused (petitioners), in executing and registering the general power of attorney purporting to sell a property, can be said to have made and executed false document. 

An analysis of section 464 IPC shows that it divides false documents into three categories: 

The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 

The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 

The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration. 

In short, WHEN , if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. 

In Mohd. Ibrahim and others vs. State of Bihar (2009) 8 SCC 751 upon examining Section 463, 467 to 471 IPC as noted, herein above, the Court while dealing with sale-deeds executed by the accused held:

"There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted. 

ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. WRIT PETITION No. - 17783 of 2010

Rajesh Gandhi And Others Vs State Of U.P. And Another

Hon'ble Suneet Kumar,J. 

Order Date :- 30.5.2016 

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Whether breach of trust without dishonest intention is offence?

In my opinion no charge is made out against Rangi Lal under Section 408, I.P.C. It should be borne in mind that mere retention of money or mere failure to return it does not necessarily raise a presumption of dishonest misappropriation. The mere fact that the payment was delayed is no ground for imputing a criminal intention. Though the ingredients of the offence of criminal breach of trust are somewhat broadly stated, there is no doubt as to their meaning. The sections dealing with the offence of criminal breach of trust were intended to punish an offence of which dishonesty is the essence. Any breach of trust is not an offence, lt may be intentional without being dishonest or it may appear dishonest without being really so.

Equivalent Citation: AIR1930Oudh321, (1931) ILR 6 LUCK 68,1931 CRLJ1678

IN THE HIGH COURT OF OUDH

Decided On: 08.04.1930

 Rangi Lall  Vs.  Emperor

Coram: Raza, J.

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