Legal Remedies against False Allegation of Cheating: Lawyers Advice
Definition of Cheating and its main Ingredients: Explained: –
Under Section 415 of the Indian Penal Code, the word, cheating means deceiving or defrauding someone in order to make him deliver any property to another person, or in other cases consenting that a person shall retain a property. It also involves deliberately inducing someone to do or omit to do some act, which may cause harm or damage to the other person’s body, mind, or reputation. Thus, until the given ingredients are present, an act or omission cannot be said to cheating under the given section:
defrauding or deceiving any person;
dishonesty persuading the other person to deliver any goods or property to any person, or to consent that a person shall retain a property;
deliberately inducing someone to do or omit to do some act, which may cause harm or damage to the other person’s body, mind, or reputation.
In Mohd Ibrahim v. State of Bihar (2010) 2 Cr LJ 2223 (SC), a complaint was registered by the real owner of a property where the accused was alleged to have executed some frivolous sale deeds. However, the accused bona fide believed that he was the real owner of the property. Further, the purchaser also believed that the accused was the real owner. Considering the matter, the Hon’ble Supreme Court held that since ingredients of cheating were absent, and thus, the accused was not guilty of cheating. The Supreme Court of India listed out the main ingredients of the criminal offense defined under Section 420 of the Indian Penal Code, i.e. cheating and fraudulently inducing delivery of property in Samir Sahay v. State of Uttar Pradesh, Criminal Appeal Number 1541 of 2017:
(i) defrauding or deceiving any person;
(ii) fraudulently convincing the other person to deliver any goods or property to any person;
(iii) consenting that a person shall retain a property;
(iv) intentionally inducing a person to do or omit to do any act, which may act or omit to do.
Allegations stemming from ulterior motive can lead to the grant of anticipatory bail: –
Lack of required ingredients for substantiating the offense of cheating makes the accused non-guilty. In the case, an accused reasonably apprehends arrest for cheating under section 420 of the Indian Penal Code which is a non-bailable offense, he may apply for anticipatory bail under section 438 of the Code of Criminal Procedure (Cr P C). In Gurubaksh Singh Sibbia v. State of Punjab, [1980 SC], the Supreme Court of India clearly observed that, if the proposed allegation stems from an ulterior motive and not to further the ends of justice but only to injure and harass the applicant by making him arrested. Thus, the court listed out the following points which are to be critically considered while granting anticipatory bail:
a. nature and seriousness of the proposed charges,
b. context of the events probably leading to the making of charges,
c. a reasonable possibility of the applicant’s presence not being protected at the trial,
d. apprehension as to tampering of the witnesses, and
e. larger interests of the public and state.
Merits of the matter are chiefly considered while granting Anticipatory Bail: –
iI may be noted that while granting anticipatory bail, the primary consideration taken is the existence of a Prima facie case. In Ravindra Saxena v. State of Rajasthan, Criminal Appeal Number 2409 of 2009, the apex court granted anticipatory bail considering the Constitutional bench order in Gurubaksh Singh Sibbia v. the State of Punjab [1980 SC]. The Court ruled that it is not just to deny anticipatory bail simply because the allegations in the matter pertains to cheating and forgery of precious security. According to the court, at the time of trial merits of the matter is to be considered while granting anticipatory bail.
The absence of the name of the accused from the First Information Report can lead to the grant of Bail: –
While granting bail, the court takes into consideration not only the nature of the offense but also the severity of punishment. Other than this, the health, sex, and age of the accused along with his enormity of charges are also to be considered. In case of non-bailable offenses like cheating, unless the necessary ingredients under Section 415 of the Indian Penal Code are present, the accused cannot be arrested under Section 420 of the Indian Penal Code. Therefore, he has reasonable grounds to be granted bail under Section 436 of the Indian Penal Code. The Hon’ble Punjab and Haryana High Court in Praveen@ Laddi v. the State of Punjab (Date of Judgment: 10.11.2000), granted bail to the accused allegedly charged with cheating and forgery due to the absence of his name in the First Information Report.
Personal liberty of a person is a paramount condition to be considered while granting Bail: –
it is very important that not only the ends of justice are met and court procedure is secured but also the personal liberty of a person is not hampered. Now, when a person applies for bail, then in such cases the court takes some days so that the same can look into the case diary kept with the Police. In the meantime, the bail applicant has to visit the jail. After this, even if he is released from jail the reputation of a person is tarnished. It may be important to note that the apex court in a valuable asset is secured as a Personal Liberty under Article 21 of the Constitution. In Sukhwant Singh v. State of Punjab & Others, Special leave Petition (Criminal) Number 3529 of 2009, the Hon’ble Supreme Court of India clearly held that the reputation of a person is his valuable asset and is a facet of his liberty under Article 21 of the Constitution.
In Prahlad Singh Bhati v. NCT, Delhi, Criminal Appeal Number 324 of 2001, the Hon’ble Supreme Court ruled that a person can be granted regular bail under Section 439 of the Code of Criminal Procedure for a graver offense notwithstanding the fact that he was granted anticipatory bail initially for a lesser offense.
A person charged with “cheating” under Section 420 of the Indian Penal Code needs his counsel to prove that the basic ingredients of cheating defined under Section 415 of the Indian Penal Code are absent. The Judiciary has reiterated in their judgment that a person shall not be convicted under Section 420 for cheating even if one ingredient defined under Section 415 of the Indian Penal Code is absent. Such a person may apply for anticipatory bail if he reasonably apprehends arrest, and our judiciary has granted such bail caring personal liberty and precious security of a person. It is very important that unless every ingredient for cheating defined under Section 415 of the Indian Penal Code is satisfied, the person is not convicted. An innocent’s visit to jail can tarnish his image and reputation and the same is thus in contravention of Article 21 of the Constitution.
Authored By: Adv. Anant Sharma & Aniket Pandey