Allahabad High Court
Rakesh Kumar Jaiswal And Others vs State Of U.P. And Another on 6 March, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 12517 of 2006 Applicant :- Rakesh Kumar Jaiswal And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajendra Singh Counsel for Opposite Party :- Govt. Advocate,Sameer Jain Hon'ble Sudhir Agarwal,J.
1. Heard Dr. S.B. Singh, Advocate holding brief of Sri Rajendra Singh, learned counsel for applicants and learned A.G.A. for State. None appeared on behalf of Respondent-2 though the case is called in revise and name of Sri Sameer Jain, Advocate is shown in cause list. Hence, I proceed to decide the matter after hearing learned counsel for applicants and learned A.G.A.
2. Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash the proceedings of Complaint Case No. 1874 of 2003, under Sections 147, 406, 420, 467, 468, 471 IPC, pending in the Court of First Additional Chief Judicial Magistrate, Varanasi.
3. It is contended that even if the allegations made in complaint are taken to be true on the face of it, it cannot be said that offence under Sections 147, 406, 420, 467, 468, 471 IPC are made out, hence entire proceedings are patently illegal and gross abuse of process of law.
4. I have gone through the complaint filed as Annexure-1 to application and contents whereof read as under:
^^1- ;g fd vfHk;qDrx.k esfMdy V~kUl fDIlu ,.M dky lsUVj ,.M ,Mokal fMftVy buQkjes'ku VSDuksykth uke ls ,d laLFkk edku uEcj 79 xka/khuxj flaxjk] Fkkuk flxjk] okjk.klh esa [kksy j[kk gSA ftlesa eqjkjh yky tk;loky iq= vKkr laLFkk ds v/;{k lukst mQZ lat; dqekj] enu o Mccw iq=x.k eqjkjh yky tk;loky laLFkk ds lnL;x.k gS vkSj lHkh ,d gh ifjokj ds lnL; gSA 2- ;g fd izkFkhZ @ ifjoknh igys nSfud tkxj.k esa dk;Zjr Fkk vksj mijksDr laLFkk ds lEcU/k esa izpkj o izlkj ns[kdj laLFkk ds vkfQl esa x;k vkSj vfHk;qDr uEcj 2 lukst mQZ lat; dqekj ls lEidZ fd;k rks mUgksaus crk;k fd gekjs ;gka lkr eghus dh V~sfuax gksrh gS vkSj V~sfuax ds ckn mldks ukSdjh esa j[k ysrk gwWaA vkSj uksdjh esa ;ksX;rk ds vuqlkj osrueku 6000@& :i;k ls 15000@& :i;k nsrk gwW vkSj V~sfuax esa HkrhZ ysus ds fy, 25000@& :i;s V~sfuax dh Qhl nsuk iM+rk gS ysfdu vki igys cSap ds V~sfuax gS blfy, vki dks fj;k;r ns ldrk gwWa vkidks 25000@& :i;s ds ctk; 21000@& :i;s crkSj Qhl tek djuk gksxk vkSj ;g Hkh dgk fd lkr eghus ds ckn vkBos eghus ls vkidks ukSdjh esa j[k fy;k tk;sxk] izkFkhZ us mlds ckrksa ij fo'okl djds eq0 21000@& :i;s lkr fdLrksa esa fnukad 10-12-2001 ls 1-6-2002 rd tek dj fn;k ftldh jlhn izkFkhZ ds ikl ekStwn gSA V~sfuax ds fu;ekuqlkj vkSj lyscl esa fn;s x;s lkr ekg ds dkslZ ds ctk; izkFkhZ dks 10 eghus vius ;gka crkSj V~Sfuax ds :i esa j[kk vkSj V~sfuax ds lkVhZfQdsV esa dsoy 12 efgus dk gh dkslZ n'kkZ;k gSA 3- ;g fd izkFkhZ ekg vDVqcj lu~ 2001 ls mijksDr laLFkk esa ysus yxk vkSj Qhl dk igyh fdLr ekg fnlEcj 2001 esa tek djrk jgk vkSj izR;sd iwjh Qhl dh fdLr 11-6-2002 rd eq0 21000@& :i;s tek dj fn;kA 4- ;g fd V~sfuax lekIr gksus ds ckn izkFkhZ dh vius gh laLFkk esa mijksDr vfHk;qDrx.k dk;Z djus ds fy, j[k fy;k vkSj dgk fd izkFkhZ vki dks nl gtkj :i;k izfrekg osru nsus ds fy, dgk vkSj tc izkFkhZ vius dk;Z ds cnys csru muds laLFkk ls ekaxrk Fkk rks og ghyk gokyh djrs jgs vksj ,d islk Hkh ml njE;ku osru ;k HkRrk ugh fn;kA 5- ;g fd izkFkhZ us tc laLFkk ds funs'kd o v/;{k rFkk lnL;x.k ls dgrk Fkk rks og cjkcj ghyk gokyh djrs jgs vksj izkFkhZ dk mijksDr laLFkk ds ftEes 70000@& :i;s osru dk cdk;k gks x;kA 6- ;g fd tc izkFkhZ us dkQh gB o ncko cukus yxk rks laLFkk }kjk eq0 1000@& dk psd fnukad 9-7-2003 dks ,dkm.V uEcj 081102000001946 ,dkm.V is;h psd fn;k vkSj blds ckn izkFkhZ dks ckj&ckj cfd;k isls ds fy, nkSM+krk jgk] vUr esa izkFkhZ dks mDr laLFkk esa vkuk tkuk cUn dj fn;kA 7- ;g fd ,0Mh0vkbZ0Vh0 ,d QthZ laLFkk gS tks f'kf{kr csjkstxkj ;qodksa dks izykshku nsdj vius laLFkk esa euekuk Qhl olwy djds vius ;gka V~sfuax ds :i esa j[krk gS vkSj ckn esa vius laLFkk ls gVk nsrk gS bl izdkj f'kf{kr csjkstxkj uo;qod blds f'kdkj gks jgs gS vkSj og lHkh yksxksa ls euekus rkSj ij V~sfuax Qhl ds uke ij iSlk olwy djrk gS vksj ckn esa QthZ lVhZfQdsV ftldh dksbZ dgha ekU;rk @ ;ksX;rk ugha gS V~sfuax dh nsdj gVk nsrk gSA 8- ;g fd mijksDr rF; dh tkudkjh izkFkhZ dks ckn esa Kkr gqvk rks og bldk fojks/k Hkh fd;kA 9- ;g fd izkFkhZ o vU; Vs~fuax ds lkFk cjkcj /kks[kk nsdj mlds }kjk tek :i;k o dke djokus ds cgkus osru dk :i;k gM+i jgk gSA 10- ;g fd izkFkhZ us ,0Mh0vkbZ Vh0 laLFkk ds f[kykQ dbZ ckj Fkkus esa fjiksVZ ntZ djkuh pkgh ysfdu fjiksVZ ntZ ugha gqbZ blfy, Jheku ofj"B iqfyl v/kh{kd okjk.klh dks ?kVuk dh lEiw.kZ tkudkjh fn;k ysfdu vhkh rd dksbZ dk;Zokgh ugha gqbZ] blfy, mijksDr ?kVuk ds ckjs esa ekuuh; U;k;ky; esa ;g nkok nkf[ky fd;k tk jgk gSA vr% Jheku th ls fuosnu gS fd mijksDr ifjfLFkfr dk voyksdu djrs gq, vfHk;qDrx.k eqjkjh yky tk;loky] lukst mQZ lat; dqekj tk;loky] jkds'k dqekj tk;loky] eukst dqekj tk;loky] enu dqekj tk;loky o Mccw tk;loky dks mijksDr /kkjkvksa esa tfj, okj.V ryc djds mUgsa nf.Mr fd, tkus dk vkns'k fn;k tkos] rkfd U;k; gksA**
5. Ex facie, I find it difficult to hold that aforesaid allegations satisfy ingredients of Section 405 IPC so as to justify summoning of petitioner under Section 406 IPC.
6. Section 406 IPC provides punishment for "criminal breach of trust" which may be imprisonment for a term upto three years with fine or with both. The term "criminal breach of trust" is defined in Section 405 IPC, which reads as under:
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust.
Explanation 1.--A person, being an employer of an establishment whether exempted under Section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not, who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid."
7. The necessary ingredients to attract offence of "criminal breach of trust", are:
(A) entrustment to any person with property or with any dominion over property;
(B) the person entrusted:
(i) dishonestly misappropriated or converts to his own use of that property;
(ii) dishonestly used or disposed of that property or wilfully suffers any person so to do in violation--
(a) of any direction of law prescribing the mode to which such trust is to be discharged;
(b) of any legal contract made touching the discharge of such trust.
8. In Bhikari Charan Mohapatra Vs. State of Orissa, 1982 Cr.L.J. NOC 174 a Sarpanch had applied to Block Development Officer for supply of seeds on credit by specifically stating in application that supply would not benefit him alone but other persons in locality. The direction had been given to pay back amount within a week on supply of seeds but he failed to pay amount within stipulated time. Orissa High Court held that it amounts to breach of trust and not criminal breach of trust.
9. Criminal breach of trust, therefore, would require complainant to show, (a) that accused was entrusted with property or with dominion over it; and, (b) that he misappropriated it or converted it to his own use or used it or disposed it. Mens rea is an essential element.
10. In R. Kalyani Vs. Janak C. Mehta and others, 2009(1) SCC 516, Court has explained, when it would be justified for High Court to interfere in criminal proceedings and Court has said:
"Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
11. This decision has been followed in Kamlesh Kumari and Ors. vs. State of U.P. and Ors., 2015(6) SCALE 77. This has also been followed recently by a Division Bench of this Court, (in which I was a member) in Sh. Suneel Galgotia and another Vs. State of U.P. and others, 2016(92) ACC 40.
12. Following above authorities and exposition of law, and discussion as also after examination of complaint, I have no manner of doubt that complaint in question does not satisfy ingredients of Section 405 IPC, hence no offence punishable under Section 406 IPC can be said to have been committed.
13. Now comes Section 420 IPC. A bare perusal of aforesaid complaint clearly shows that ingredients of Section 420 IPC are not at all satisfied. Section 420 is "cheating" which is defined in Section 415 and both these provisions read as under:
"415. Cheating.- 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".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
"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 to fine."
14. In order to attract allegations of "cheating", following things must exist:
(i) deception of a person;
(ii) (A) fraudulent or dishonest inducement of that person,
(a) to deliver any property to any person; or,
(b) to consent that any person shall retain any property, (B) intentional inducing that person to do or omit to do any thing,
(a) which he would not do or omit if he was not so deceived, and,
(b) such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
15. Then in order to attract Section 420 I.P.C., essential ingredients are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
16. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
17. In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
18. In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
19. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, 2000(4) SCC 168 Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
20. In S.W. Palanitkar and others Vs. State of Bihar and another, 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
21. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
"Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person 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, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest."
(Emphasis added)
22. In Devender Kumar Singla Vs. Baldev Krishan Singh 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
23. In Indian Oil Corporation Vs. NEPC India Ltd., 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract." (emphasis added)
24. Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
25. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
26. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in Sh. Suneel Galgotia (supra).
27. Next provisions under which cognizance has been taken by Magistrate are Sections 467, 468, 471 IPC.
28. Section 467 IPC deals with forgery of valuable security, will, etc. and reads as under:-
"467. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
29. The essential ingredients of Section 467 IPC as is evident from a bare perusal of above provision are:-
(i) accused has committed forgery;
(ii) such forgery was committed in relation to a document which purports to be;
(a) valuable security; or
(b) a will; or
(c) an authority to adopt a son; or
(d) which purports to give authority to any person to make or transfer any valuable security; or
(e) to receive the principal, interest or dividends thereon; or
(f) to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money; or
(g) an acquittance or receipt for the delivery of any movable property or valuable security.
30. In order to bring an offence under Section 467 IPC, all above ingredients must be pleaded but I do not find that the same stand satisfied.
31. Section 471 IPC talks of use of forged document and reads as under:-
"471. Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
32. In the present case, there is absence of allegation of forgery of document in the manner as defined in IPC, I am afraid that even Section 471 is not attracted.
33. So far as offence under Section 147 IPC is concerned, once offence under substantial provisions is not made out, even Section 147 IPC cannot be said to have attracted in the case in hand.
34. In view of discussions made hereinabove and considering the allegations contained in the complaint in the case in hand in the light of above authorities, the impugned order cannot be sustained.
35. The application is allowed and entire proceedings of Complaint Case No. 1874 of 2003, under Sections 147, 406, 420, 467, 468, 471 IPC, are hereby quashed.
Order Date :- 06.03.2020 AK