Kerala High Court: In an application filed under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) to quash the First Information Report (‘FIR’) and further proceeding against the accused for offence under Section 419 of the Penal Code, 1860 (‘IPC’), Bechu Kurian Thomas*, J., has quashed the criminal proceedings against the accused while stating that though he was impersonating, but due to the impersonation no damage or harm to body, mind, reputation occurred. Therefore, no cheating is done, and Section 419 IPC cannot be attracted.
Background:
On 23-05-2013, the accused arrived at the villa complex belonging to cricketer S. Sreesanth. Upon encountering the security guard, the accused falsely identified himself as a member of the Mumbai police force. Subsequently, he gained access to the cricketer’s residence. Inside, he proceeded to deceive the cricketer’s parents by claiming to be an employee of the Board of Control for Cricket in India (‘BCCI’). This fraudulent representation led to the accused gaining their trust. By posing as a BCCI staff member, the accused manipulated the situation to his advantage, ultimately committing an offence under Section 419 IPC.
Issue:
Whether offence of cheating by impersonation can occur when due to impersonation no damage or harm to body, mind, reputation, or property taking places or is likely to take place to anybody?
Analysis:
The Court took note of Section 416 IPC, that defines ‘cheat by personation’, and said that the meaning of ‘personate’ is to pretend to be another person or assume the character of or act the part of. For the offence to be attracted, it is not enough that a person merely pretends to be some other person, as mere impersonation is not an offence. The offence is attracted only when, along with the impersonation, the accused indulges in cheating. ‘Cheating by Personating’ has two elements in it. First a person needs to assume the character of or act the part of somebody else and along with the impersonation, the accused must indulge in cheating deliberately induce somebody to deliver any property to any person or should have been intentionally induced to do or omit something, the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
The Court referred to Ram Jas v. State of U.P. [(1970) 2 SCC 740)] wherein it was observed, “conviction for an offence under Section 419 IPC substantively can be justified only if the facts proved constitute all the ingredients of the offence of cheating”
The Court said that though the security guard was induced to permit the accused to enter the Villa Complex due to impersonation, there is no allegation that any damage or harm was caused to the security guard. Thus, in absence of any whisper of any such harm having been caused or have likely been caused to the security guard for having been induced by the alleged impersonation of the accused, he cannot be said to have committed cheating. And, as the person neither cheated nor harmed, the offence of Section 419 cannot be attracted.
The Court viewed that the material on which prosecution relied upon is insufficient to constitute an offence under Section 419 IPC. Thus, the Court quashed the proceeding against the petitioner with Judicial First-Class Magistrate’s Court.
[Nilesh Ramachandra Japthap v. State of Kerala, 2024 SCC OnLine Ker 1627, Order dated 03-04-2024]
Advocates who appeared in this case :
For the Petitioner: Advocate Dheeraj Krishanan Perot, AdvocateVineetha A.A., Advocate Sreerag S. , Advocate Arta Devasta, Advocate Megha, Advocate Sreepriya K.U.
For the Respondents: Additional Public ProsecutorNoushad K.A
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