The enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS), marks a significant shift in India’s criminal jurisprudence, replacing the colonial-era Indian Penal Code, 1860 (IPC). Among the various reforms introduced, the redefinition and consolidation of offences related to cheating stand out. This article delves into the legal nuances of cheating under the BNS, analysing its provisions, comparing them with the erstwhile IPC, and exploring their practical implications.
Understanding Cheating under BNS
Section 318: Definition and Scope
Section 318 of the BNS encapsulates the offence of cheating. It states:
“(1) 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.”
An explanation further clarifies that dishonest concealment of facts constitutes deception within the meaning of this section.
This definition emphasises three core elements:
Deception: The act of misleading or causing someone to believe something false.
Fraudulent or Dishonest Inducement: Persuading someone to act (or refrain from acting) in a way they wouldn’t have, had they not been deceived.
Resultant Harm: The action or inaction leads to, or is likely to lead to, damage or harm to the individual’s body, mind, reputation, or property.
Illustrative Examples
The BNS provides illustrations to elucidate the application of Section 318:
False Pretences: A person falsely claiming to be a civil servant to procure goods on credit without intending to pay.
Counterfeit Goods: Selling items with counterfeit marks, deceiving buyers into believing they are genuine.
Misrepresentation: Presenting false samples to induce purchases.
Fraudulent Instruments: Using invalid financial instruments to obtain goods.
False Collateral: Pledging fake diamonds to secure loans.
These examples underscore the diverse scenarios where cheating can manifest, highlighting the law’s broad applicability.
Punishments Prescribed
Section 318 delineates punishments based on the gravity and nature of the offence:
General Cheating: Imprisonment up to 3 years, or fine, or both.
Cheating with Breach of Duty: If the offender was bound by law or contract to protect the victim’s interests, imprisonment may extend up to 5 years, or fine, or both.
Cheating Involving Property: If the cheating involves inducing the victim to deliver property or alter/destroy valuable security, imprisonment may extend up to 7 years, or fine, or both.
This tiered approach ensures proportionality in sentencing, reflecting the offence’s severity.
Cheating by Personation: Section 319
Section 319 addresses “cheating by personation,” where an individual deceives another by pretending to be someone else. The key elements include:
Impersonation: Pretending to be another person, real or imaginary.
Intent to Deceive: The impersonation is carried out with the intent to deceive.
Punishment for this offence includes imprisonment up to 5 years, or fine, or both.
Cheating Offences: Transition from IPC to BNS
Under the IPC, cheating-related offences were spread across multiple sections:
- Section 415: Definition of cheating.
- Section 416: Cheating by personation.
- Section 417: Punishment for cheating.
- Section 418: Cheating with knowledge of wrongful loss.
- Section 420: Cheating and dishonestly inducing delivery of property.
The BNS consolidates these provisions into Sections 318 and 319, streamlining the legal framework. Notably, the BNS increases the maximum punishment for general cheating from 1 year (under IPC Section 417) to 3 years, reflecting a more stringent stance against such offences.
Legal Interpretations and Judicial Precedents
Indian courts have consistently emphasised the necessity of “mens rea” or guilty mind in establishing the offence of cheating.
1. Hridaya Rangan Pd. Verma & Ors. v. State of Bihar & Anr. (2000)
In this case, the Supreme Court of India quashed criminal proceedings initiated by a cooperative society’s secretary against the appellants, who had sold land to the society. The dispute arose after cheques issued by the society bounced, leading the appellants to file criminal and civil cases for recovery. In retaliation, the society’s secretary filed a complaint alleging cheating and other offences.
The Court held that mere non-disclosure of a pending partition suit did not amount to cheating under Section 420 IPC (currently section 318 of BNS), as no dishonest intention at the inception of the transaction was established. Applying the Bhajan Lal principles, the Court ruled that the complaint did not disclose any prima facie offence and quashed the proceedings to prevent abuse of the legal process.
2. Mitesh Kumar J. Sha v. State of Karnataka (2021)
In this case, the Supreme Court quashed criminal proceedings against the appellant, who was accused of selling flats over his authorised share under a Joint Development Agreement (JDA). The respondent alleged criminal breach of trust and cheating under Sections 406, 419, and 420 IPC (currently Sections 316, 319 and 318 of BNS). However, the Court found that the dispute stemmed from civil contractual differences, particularly over an MoU related to the repayment of a loan and sale rights over additional flats.
The Court emphasised that mere breach of contract does not amount to cheating unless fraudulent or dishonest intent is shown at the inception. Since no prima facie case of criminal intent was established and the matter was already subject to arbitration and civil proceedings, the Court held that continuing criminal prosecution would amount to abuse of process and accordingly allowed the appeal.
Practical Implications
The restructured provisions under the BNS aim to:
Enhance Clarity: By consolidating related offences, the law becomes more accessible and understandable.
Ensure Proportionality: The tiered punishment system aligns penalties with the offence’s severity.
Facilitate Enforcement: Clear definitions and illustrative examples aid law enforcement agencies in identifying and prosecuting offences effectively.
However, challenges remain in ensuring consistent application across diverse cases, necessitating ongoing judicial scrutiny and interpretation.
Conclusion
The Bharatiya Nyaya Sanhita, 2023, through Sections 318 and 319, offers a comprehensive framework to address cheating offences, reflecting contemporary societal needs and legal standards. By consolidating provisions, enhancing punishments, and emphasising intent, the BNS strengthens the legal apparatus to deter and penalise fraudulent activities. As the judiciary continues to interpret and apply these provisions, it will play a pivotal role in shaping the law’s practical impact.
References
[1] Bharatiya Nyaya Sanhita, 2023
[2] Indian Penal Code, 1860
[3] Hridaya Rangan Pd. Verma & Ors. v. State of Bihar & Anr., AIR 2000 SC 2341
[4] Mitesh Kumar J. Sha v. State of Karnataka, Criminal Appeal No. 1285 of 2021