How to get bail in Section 420 IPC

How to Get Bail in 420_Free Legal Advisor

How to get bail in Section 420 IPC

How to get bail in Section 420 IPC

Section 420 in the Indian Penal Code deals with Cheating and dishonestly inducing delivery of property.

  • 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 fine

 Essential elements of Section 420

(i) Cheating;
(ii) Dishonest inducement to deliver property or to make, alter or   destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and
(iii) Mens rea of the accused at the time of making the inducement.

Making of a false representation is one of the essential ingredients to institute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely satisfactory to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

  • Cheating

      The term “cheating” has been defined under Section 415 of the Indian Penal Code. The element of cheating must be present in every offence under Section 420 of I.P.C.

Section 415 of IPC states that 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”.

For example – There are two persons A and Z. A exhibits the false sample of an article to Z and intentionally make Z believes that the article corresponds with the sample. A here induces Z to buy and pay for the false sample of article. A cheats Z.

  • Acting dishonestly

Section 24 defines that what is “acting dishonestly”. When the doing of any act or not doing of any act causes wrongful gain of property to one person or a wrongful loss of property to a person, the said act is done dishonestly.

  • Mens rea

Mens rea is a legal phrase which used to define the mental state of a person while committing a crime and that should be intentional. It can refer to a general intent to break the law or a specific prearranged plan to commit a particular offense. A criminal prosecutor must show beyond any reasonable doubt to convict an accused person that the suspect actively and knowingly contributed in a crime that affected another person or their property.

  • How Cheating is to be proved

You have to prove that there was an intention to cheat at the time of making the misrepresentation; and this fact is to be proved on the basis of all the subsequent conduct as acts and omissions of the accused. Therefore, all the acts and omissions of the accused must be clearly and legibly set out right from the date of making of false representation, till the filing of the complaint.

It must be shown that there is a failure of the promise which was made. It must be shown that there was no effort on the part of accused to perform his promise. The test of prudent man must be applied to appreciate the evidence on record.

  • Cognizance of an offence under Section 420

The offence is cognizable and falls under the category of Non Bailable. It is triable by Magistrate of the First Class and therefore FIR or Application u/s 156(3) or Private Complaint u/s 200 may be preferred.

  • Getting a bail under 420 IPC

Vaman Narain Ghiya v. State Of Rajasthan, Hon’ble Supreme Court has held that, Balance to be maintained between the personal liberty of the accused and the investigational right of the police. –An accused is not detained in custody with the object of punishing him on the assumption of his guilt thus can opt anticipatory bail.3

Offences under section 420 of IPC are non bailable offence, due to which it is possible to apply for anticipatory bail under sec 438 of CrPc.

  In Abdul Fazal Siddiqui vs Fatehchand Hirawat And Another JT 1996 (8), the court held that there was nothing on the record to show that the appellant had any knowledge about the property being an encumbered property or about the appointment of the Joint Receivers by the Calcutta High Court in a suit in respect of that property. There was no evidence to show that the appellant, knowingly made any false representation much less dishonestly or fraudulently. The basic ingredients of the offence of cheating were missing in the case. The evidence on tile record does not connect the appellant with the crime alleged against him at all. A mere representation, which was neither claimed or alleged to be dishonest or fraudulent would not attract the charge of cheating only because the complainant parts with his money on the basis thereof. In the present case the dishonest representation, both orally and in the deed of hypothecation, was made by  proprietor of the Calcutta Case. The conviction and sentence against the appellant as recorded by the trial court and confirmed by the High Court, under the circumstances was unsustainable ad thus accordingly the appellant was given bail.

           In Sandeep Chaudhary And Anr. vs State And Ors SC stated that in their opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfillling the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provisions of Chapter xxxviii of the Code and the provision therein does ;not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise.

What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law. Since the petitioners have been granted interim protection, that shall remain operative for a period of two weeks during which period the petitioners shall apply for regular bail before the trial court

          In a recent ruling in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat & Anr the Honorable Supreme court held that Case u/s.420 IPC are not barred if prior case u/s.138 Negotiable Instruments Act is pending!

Also in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr SCC 703, It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C.

In Ranubhai Bhikhabhai Bharwad vs State Of Gujarat the High court on the grounds of detention, a reference was made to three criminal cases registered against the petitioner as under as

(i) Gorva Police Station M. Case No.28/97 for offences under Sec.504, 506(2), 120(B), 406, 420, 386, 389, and 114 of IPC – In this case, the petitioner is enlarged on bail and the trial is pending.

(ii) J.P. Road Police Station Case No.139/98 for offences under Sec.342, 406, 420, 504, 323, 506(2) and 114 of IPC – In this case also, the trial is pending and the petitioner is on bail.  , thus for both the cases the petitioner was granted bail.

Get Free Legal Advice

Kapil Chandna

 851A,Patiala House Court , Near Delhi High Court, New Delhi-110001, India

+91 9899011450+91 9911218741

Advocate.kapilc@gmail.com

Summary
admin
karanandkapil@gmail.com
1 Comment
  • Krishna Kishore Ganguly
    Posted at 13:13h, 09 November Reply

    Dear Adv Kapil Chanda,

    Diwali greetings.

    I am an advocate practicing before the Calcutta high court and in search of an appropriate citation preferably of the Supreme Court. and also guidance The case in brief is as follows:

    1. My client of 87 years had lodged a p0olice copmplaint u/s144 of Cr.P.C. in the year 2012 before Siligiri SDEM which was granted and the Opposite Party being lamd mafia was directed not to trespass in to his property after collecting report from police and also local BLRO about the acutual possession of the property by my client. He directed the O.P. to submit W.S which was never submitted.

    2. The Opposite Party took forcible possession of the property after 50 days of the said 144 order dispossessing my client and my client had filed an application for converting the case u/s144 to section 145 on the 60th day of passing the 144 order i.e. when the said 144 case came up for hearing.

    3. The SDEM recorded such application for conversion of case u/s144 to 145 and transferred it to the court of SDM without mentioning the order u/s145(1) being the preliminary order is thus passed and also asked the O.P. to appear before the SDM on the fixed next date of hearing.

    4. Therefater the SDM heard the case for long 5 years and asked the O.P. several times to submit W.S. and appear before the court severally but they did not compoly with.

    5. Finally the SDM allowed the conversion petition and directed the O.P., to return the physical possession of the property to my client with in one month and police was directed to arrange for the said return of possession.

    6. The O.P. have gone to Calcutta High court and filed a C.R.R. complaining that SDM has not isued order u/s145(1) first but allowed the conversion and passed order as per section 145(6)(a).

    7. What I require is the citation of the Supreme Court stating that it is not mandatory for specifying in the order that it is as per section 145(1) of Cr.P.C. and also that the Magistrate can derive satisfaction of the fact after verifying the record even porior to filking the conversion petition.

    8. I could lay my hand on the citation provided by Indiakanoon in case between Padma Charan Behra & Ors. Vs Prafulla Chandra Naik & Ors. passed by the Division Bench of Orissa High Court on 20.12.1974 which exactly fits my requirement but Calcutta high Court requires recent order and order from the Apex court.

    9. I would request you to please provide me the case references in line with the above requirement, if possible.

    thank you very much in anticipation.

    With warm regards.

    K.K.Ganguly
    Advocate
    High Court, Calcutta

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: