Rajasthan High Court - Jodhpur
Anjali Jain vs State Of Rajasthan on 31 July, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:30398]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1374/2021
1. Anjali Jain W/o Amit Dangi Jain, Aged About 27 Years, A-
602, Evita Ampress, 6Th Floor, Gd Ambedkar Road, Plot
Cs 429, Behind Parel Hafkin Institute, Mumbai
(Maharastra).
2. Amit Dangi S/o Shri Sushil Dangi, Aged About 30 Years,
By Caste Jain, R/o A-602, Evita Ampress, 6Th Floor, Gd
Ambedkar Road, Plot Cs 429, Behind Parel Hafkin
Institute, Mumbai (Maharastra).
----Petitioners
Versus
1. State Of Rajasthan, Through P.p.
2. Nutan Kumar Jain S/o Shri Pushp Kumar Jain, 183,
Jawahar Nagar, Nimach (M.p.).
----Respondents
For Petitioner(s) : Mr. Shreekant Verma
For Respondent(s) : Mr. Rajvendra Saraswat, Counsel for
the Complainant
Mr. Mahipal Bishnoi, PP.
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
ORDER RESERVED ON : 08/04/2024
ORDER PRONOUNCED ON : 31/07/2024
BY THE COURT: -
1. By way of filing the instant miscellaneous petition, challenge is made to the very lodging of the FIR No.46/2021 of Police Station, Nimbahera, District Chittorgarh for the offence under Sections 406 and 420 of the Indian Penal Code, 1860 ("IPC"). (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (2 of 23) [CRLMP-1374/2021]
2. Heard learned counsel for the petitioner as well as learned Public Prosecutor for the State and perused the FIR impugned alongwith other material made available to this Court.
3. Briefly stated the facts of the case as mentioned in the FIR are that the Respondent No.2 Shri Nutan Kumar Jain filed a complaint on 21.01.2021 at the Police Station, Nimbahera, District Chittorgarh stating therein that the complainant is one of the directors in Aravali Constructions Pvt. Ltd. and petitioners were having cordial business relations with the complainant. It is further stated that in the year 2017, petitioners contacted complainant with an offer of a good business proposal and also assured him about the great profit from this business deal if he would invest his money into this. Upon this proposal, complainant believed on the statements of the petitioners and on 15.09.2017 transferred Rs. 30,00,000/- (Rupees Thirty Lacs) from the account of his company to the bank account of the petitioners. Whereafter, he was assured by the petitioners that his amount has been invested in the business proposed and he will receive good profit from it. Time and again, he inquired them regarding his investment but every time they answered that till now, no profit has been gained. One month prior to lodging of the FIR, the complainant contacted with the petitioners and told them that he is in the need of money requested them to return his invested money, upon which, the petitioners told him that they have intentionally induced him and denied to return the money back. On the basis of this, the said FIR was lodged.
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4. Learned counsel for the petitioners have argued that the company by the name of M/s Aravali Constructions does not exists and the name of the company has been changed to ACC Mining Pvt. Ltd. as per the record of the Registrar of Companies. It is further stated that petitioners have never been to Nimbahera; neither they visited complainant's office nor they proposed any business proposal to him. The petitioners further mentioned that the main proprietor (Shri Udai Lal Aanjana) of Capricon Credit Pvt. Ltd. having 51.15 bighas industrial land in Bhilwara and Shri Sushil Dangi, the authorised person of the complainant's company was given a task for conversion, patta and layout plan of that land. During that time, Shri Udai Lal Aanjana had made a proposal to the petitioner no.2, Amit Dangi's father Shri Sushil Dangi who is an authorized person of the complainant's company and is director in Mentor Capital Ltd. that his company Capricon Credit Pvt. Ltd. is having 15% shareholding of his company; if the father of the petitioner no.2 leaves his shares in the company in exchange of an amount, then the whole company will go back to the complainant. For this deal, the father of the petitioner no.2 will take Rs. 5,00,00,000 (Rs. Five Crores) and petitioner no.1 will charge Rs. 50,00,000/- (Rs. Fifty Lacs) for the deal and for the said purpose the amount of Rs. 30,00,000 (Rupees Thirty lacs) was transferred to the bank account of petitioner no.1 and on 26.11.2018 transferred Rs. 5,00,00,000 (Rs. Five Crores) through RTGS in the bank account of Mentor Capital Ltd. It is further mentioned that in the month of December 2018 stamp was purchased for share purchase agreement and all the necessary formalities were done (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (4 of 23) [CRLMP-1374/2021] by the petitioner. The complainant party is an old business entity and he agreed with the accused after due deliberations and was knowing the pros and cons of the nature of business deal. The petitioners further mentioned that complainant has lodged an FIR just to grab the due amount of the petitioners. Thus, it is prayed that the impugned FIR may be quashed and set aside.
5. Learned public prosecutor and counsel appearing for the complainant has opposed the submissions advanced by the counsel of the petitioner. Learned public prosecutor has placed on record the factual report dated 04.07.2024 for the perusal of this Court.
6. On the other hand, learned counsel appearing for the complainant argued that he knew the petitioners because of their business transactions and they have a cordial business relation. In the year 2017 the petitioners came into contact with him regarding a business proposal in which he was allured that if he invests his money in their business, he will gain high profit out of it. It is further purported that due to this inducement, complainant invested Rs. 30,00,000/- (Rs. Thirty Lacs) and was in regular touch with the petitioners to know the status of profit but every time he was answered that whenever they will gain profit, he will be benefited. A month before lodging of the FIR, the complainant contacted the petitioners and asked them regarding status of profit, he was answered that they have extracted money from him in a very planned manner by inducing him and he was advised not (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (5 of 23) [CRLMP-1374/2021] to contact them in this regard. Thereafter, he has lodged the said FIR.
7. I have heard the submissions made at the Bar by counsel for the parties and have gone through the material available on record.
8. After perusing the record and pondering upon the submissions and materials made available to the Court, prima facie, it is revealed that the matter relates to a dispute regarding business transaction regarding the transferring of the shareholding and for which the amount was paid. It is not the case of prosecution that the complainant has been duped into the following transaction and under that influence he invested such a huge amount into a business deal as there is no sufficient material available which proves the same. Subsequently, it is noticed that both the petitioners and the complainant know each other quite well due to their business transactions which makes it clearer regarding their relations. Be that as it may, nothing concrete is available on record so as to presume that a business deal was done between them for which amount of Rs.1,80,00,000/- has been transferred by the complainant in the bank account of the petitioners and after that they denied to repay the same with a dishonest intention and so also nothing suggesting that right from the very inception the petitioner party had a dishonest intention and all things were done only with a view to dupe the complainant.
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9. Here, the question for adjudication before this Court comes that whether the act alleged by the complainant in the FIR is sufficient enough to constitute an offence under Sections 406 and 420 of the IPC, is a question to be considered by this Court and on the aforesaid ground, a petition for quashing of the FIR and stifle of the investigation can be maintained or not, is to be examined.
10. This Court feels that the courts are meant to impart justice and for that purpose alone it is established. From the very day of its establishment, it acquires and possesses all the powers needed to impart justice and as such for the purpose of dispensation of justice, it can exercise the inherent powers vested in it. The express provision under Section 482 CrPC only recognizes and preserves the powers which are inherent and imbibed in the courts for the purpose of achieving the ends of justice as well as for the purpose of preventing or thwarting the abuse of process of law. Whether the High Court in its inherent power which is expressly recognized under Section 482 CrPC can quash a criminal complaint or an FIR has very elaborately and wisely been enunciated by Hon'ble the Supreme Court in the case of State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors., reported in AIR 1992 SC 604, Hon'ble the Supreme Court has expounded elaborately the canvass of the issue relating to quashing of the FIR. For the ready reference, the relevant part of the judgment is reproduced herein below: -
105...In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (7 of 23) [CRLMP-1374/2021] exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
I. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.
II. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
III. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
IV.Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. V. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
VI. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
VII. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (8 of 23) [CRLMP-1374/2021] The matter in hand falls under first, second, third and fifth category as mentioned in the Bhajan Lal (supra) where it is stated that the allegations as mentioned in the FIR does not prima facie form or constitute any offence against the accused, allegations in the FIR and other materials accompanying the FIR do not disclose a cognizable offence, uncontroverted allegations made in the FIR and evidence collected in support of the same do not disclose the commission of any offence and lastly, the allegations made in the FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion. The power of quashing could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
11. First, this Court has to examine whether the offence under Section 406 of the IPC is made out or not. For ready reference Section 406 of the IPC is reproduced as under: -
Section 406 IPC: Punishment for criminal breach of trust.
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
A perusal of the provision reflects that to establish the offence of criminal breach of trust, certain key elements must be present which includes: (a) fact of entrustment, (b) dishonest intention and (c) misappropriation or conversion of property for one's own use or disposal of the property.(Downloaded on 05/08/2024 at 08:39:45 PM)
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12. In the case of Abhishek Saxena vs. The State of Uttar Pradesh and Ors., Criminal Appeal No. 3628 of 2023, Decided On: 28.11.2023, Hon'ble the Supreme Court had stated the ingredients or essentials of Section 406 of the IPC which is Punishment for criminal breach of trust. The essentials to establish the offence under Section 406 of the IPC are as follows- i. There should be entrustment of the property or dominion over the property against which the charges are being made. ii. The person dishonestly misused the property in violation of the duties committed to that person and misappropriating or converting it for his own use.
iii. The person dishonestly using or disposing of the property in violation of any direction of law which prescribes the mode in which such trust is to be discharge.
iv. Lastly, Section 405 IPC's elements must be violated. It is mentioned that in absence of these basic ingredients of entrustment and dishonest usage or disposal of any property, an offence of Section 406 of the IPC would not attract.
13. In the case of The State of Gujarat vs. Jaswantlal Nathalal, reported in AIR 1968 SC 700, the meaning of "entrustment" is explained that the person who had transferred any property or transfer it on their behalf remains the property owner of that property as per Section 406 of the IPC. (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (10 of 23) [CRLMP-1374/2021]
14. In the matter of Usha Chakraborty and Ors. vs. State of West Bengal, reported in AIR 2023 SC 688, Hon'ble the Supreme Court had again considered all the essentials which should be present to invoke the charge under Section 406 of the IPC.
15. It can be understood that entrustment of the property by one person to the other is an essential ingredient for constituting an offence under Section 406 of the IPC. The said section envisages penalty clause for criminal breach of trust, definition of which has been given under Section 405 of the IPC. A plain reading of the provision under Section 405 of the IPC manifests that when any person places his trust in someone for transferring possession of any property, movable or immovable to someone and that someone breaches the trust by retaining the property would come under the ambit of Section 406 of the IPC. Besides the entrustment of property, the individual must have personally misused the property in violation of the duties assigned to that person. In common understanding, a criminal breach of trust would be committed when the accused commits an offence regarding the entrusted property by creating or converting another person's property for his own use. Here, the transferee of the property and transferor establishes a connection in which the transferor retains the ownership of the property with him which would mean that even after the transfer of the property for a certain period; the transferor would have custody or control over the property only for the another person's benefit or until his (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (11 of 23) [CRLMP-1374/2021] desire. It can be said that even the transfer of property for a limited period to the other person does not imply the loss of ownership over propriety rights of the transferor. Entrustment of property necessitates establishment of fiduciary relationship between them. In cases pertaining to such category, generally, the possession of the property is transferred to other person for a certain period with this promise that whenever the owner would seek return of the property, the retainer shall handover back the same to him. If the transferee, instead of giving back the property to its real owner, uses the same for his own purpose or converts it for his own use then it would amount to misappropriation of the property.
16. Here in the present case, the amount was not given by the complainant to the petitioner for a limited period with an assurance that whenever he would wish, the accused shall deliver back him the same. Entrusting the property to someone or paying an advance token amount are altogether different and there is fine distinction between entrustment and paying of advance token amount for a certain work. Admittedly, it is not the case of the prosecution that certain amount was entrusted to the accused- petitioner but he refused to pay back the same to the complainant his due rather converted the property for his own use. Thus, the ingredients which are essential to constitute an offence under Section 406 of the IPC are blatantly or conspicuously missing. After minutely scrutinizing the nature of allegations as mentioned in the FIR, this Court feels that the nature of allegations as (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (12 of 23) [CRLMP-1374/2021] mentioned in the FIR impugned are not relatable to a criminal proceeding rather it involves a dispute of civil nature.
17. As far as the question of invocation of Section 420 of the IPC is concerned, at first it would require to examine the elements which are essential to constitute an offence under Section 420 of the IPC. For ready reference Section 420 of the IPC is reproduced as under: -
Section 420 IPC: 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.
18. It is manifesting from the plain reading of Section 420 of the IPC that it deals with the act of cheating and dishonestly inducing the person so 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 capable of being converted into a valuable security.
A plain reading of the provision is also reflecting that cheating is an essential element of the charge under Section 420 of the IPC. So, it would require to examine the definition of cheating.
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19. Section 415 of the IPC defines Cheating. For ready reference Section 415 of the IPC is reproduced as under: -
Section 415 IPC: 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.
20. In the case of, Inder Mohan Goswami& Another vs. State of Uttaranchal, reported in AIR 2008 SC 251, Hon'ble the Supreme Court observed that to establish the offence under Section 420, there should be some essentials which should be at place.
For Section 420 IPC which states cheating and dishonestly inducing delivery of property to be put in motion, the essentials of the offence have to be met and the essentials of "cheating" as mentioned in Section 415 of the IPC also comes into play as from then and there only Section 420 of the IPC comes out, so here are the essential ingredients of Section 415 and they are as follows- i. To deceive a person by misleading representation or by making any false representation also includes dishonest (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (14 of 23) [CRLMP-1374/2021] concealment or by any other act or by the way of omission of an act, ii. Dishonestly and fraudulently inducing any person and giving him either and or options relating to either deliver the property or else consent to the retention thereof by any person or with the intention of inducing that person to deceive or to omit something he would have not done if not deceived by the other person, iii. This kind of act of omission and act of deceiving is likely to cause the harm and damage to the body, mind and also property of that person.
There are two categories which are mentioned in this Section, firstly an inducement to deliver the property to any person fraudulently or dishonestly and secondly, the acts done or omitted by a person deceived would not have done if not deceived by the other person. The basic difference between these two is about intention. In the first category we see that it is fraudulent and dishonest and in the second category we see it is intentional but need not be fraudulent and dishonest. For cheating it would be must to show that there has been a fraudulent and dishonest intention.
21. In the case of Md. Ibrahim & Ors. v. State of Bihar & Anr., reported in 2010 AIR SCW 405, Hon'ble the Supreme Court had stated about the essential ingredients to constitute an offence under Section 420 of the IPC and for that purpose, (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (15 of 23) [CRLMP-1374/2021] cheating is the main ingredient but not the only one so as to constitute the same offence. Beside presence of cheating as defined under Section 415 these further things should be followed- i. There should be dishonest inducement of a person who is deceived to deliver any property to any person, or ii. Make, alter or destroy the whole or part of any valuable security and also includes anything sealed and signed and also capable of being converted into a valuable security.
22. In the case of Alpic Finance Ltd. vs. P Sadasivan and Ors., reported in AIR 2001 SC 1226, Hon'ble the Supreme Court observed that to deceive someone is to basically induce someone to actually believe about a thing which on the prima facie will look true but when looked properly it actually is false and the one who is deceiving also knows that the thing is false and it should also be with a dishonest and fraudulent intention while committing the offence.
23. In the case of Vijay Kumar Ghai and Ors. vs. The State of West Bengal and Ors., reported in (2022) 7 SCC 124, Hon'ble the Supreme Court observed in detail every essential ingredient of Section 406 and Section 420 of the IPC read with Section 405 and Section 415 of the IPC.
24. A guilty intention or "mens rea" is the essential ingredient of the offence of cheating. In Hari Prasad Chamaria vs. Bishun Kumar Surekha & Ors., as reported in AIR 1974 SC 30, it was held that unless the complainant shows the dishonest or fraudulent (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (16 of 23) [CRLMP-1374/2021] intention at the time complainant parted with money, it would not amount to the offence of cheating under Section 420 of the IPC and will only be a breach of contract.
25. In Hira Lal Hari Lal Bhagwati v. CBI, reported in AIR 2003 SC 2545, it has been observed that for establishing the offence of cheating, it is required to show that that there was fraudulent or dishonest intention of the accused at the time of making the promise or entering into the transaction or making any representation.
26. In the case of Harmanpreet Singh Ahluwalia and Ors. vs. State of Punjab and Ors., reported in (2009) 7 SCC 712, it is propounded that from the bare perusal of the provision it is evident that the ingredients and elements of any fraudulent or wrongful or dishonest intention should exists from the very inception of the contract.
27. In the case of A.M. Mohan vs. The State represented by SHO and Ors., reported in Criminal Appeal No. 1716 of 2024, Decided On: 20.03.2024, Hon'ble the Supreme Court observed that to attract the provision of Section 420 of the IPC, the FIR must show the ingredients of Section 415 of the IPC. Specifically, it should demonstrate that a person has deceived someone, fraudulently or dishonestly induced that person to deliver property to any person, and that there was a dishonest intention at the time of making the inducement. The dishonest inducement is sine qua non to attract the provisions of Section 415 and Section 420 of the IPC. If the essentials are lacking in the FIR, then (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (17 of 23) [CRLMP-1374/2021] continuation of the criminal proceedings would be an abuse of process of law. In the present matter also the essentials of Section 415 and 420 of the IPC are missing and it cannot be said that there was cheating on the part of the petitioner in the present case.
28. In the case of State of Uttar Pradesh and Ors. vs. Akhil Sharda and Ors., reported in [2022] 6 SCR 772, Hon'ble the Supreme Court observed that after considering all the facts and circumstances of the case it does not fall under Section 406 and 420 of the IPC as the essential ingredients of the offences mentioned in the FIR are missing and same are the facts of the present case.
29. At the cost of repetition, it is reiterated that one of the essential ingredient of cheating as mentioned in Section 415 of the IPC explains it very clearly that the existence of dishonest and fraudulent intention should be from the initial promise or it should be present from the beginning of the transaction.
30. A perusal of both the provisions revealing that Section 420 of the IPC is a graver form of cheating which includes inducement to the victim for the purpose of delivery of the property.
31. In the case of G Sagar Suri and Ors. v. State of U.P. and Ors., reported in AIR 2000 SC 754, Hon'ble the Supreme Court recognised that jurisdiction under Section 482 of the CrPC has to be exercised with a great care if the matter is essentially of civil nature has been given a cloak of criminal offence. Criminal (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (18 of 23) [CRLMP-1374/2021] proceedings are not a short cut of other remedies available in law. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
32. In the case of Paramjeet Batra v. State of Uttarakhand, reported in (2013) 11 SCC 673, Hon'ble the Court recognized that while exercising its jurisdiction under Section 482 of the CrPC, High Court has to be considerate and cautious. This power should be used only to bar the abuse of the process and to secure the ends of justice. It has to look upon the case and if the ingredients of criminal offence are missing and dispute is simply related to a civil matter, then criminal proceeding should be quashed by the High Court just to prevent the abuse of the process of the law and of the Court as well.
33. In the case of Mitesh Kumar J. Sha v. The State of Karnataka and Ors., reported in AIR 2021 SC 5298, Hon'ble the Supreme Court has propounded that there has been an attempt to stretch the counters of a civil dispute and thereby essentially impart a criminal color to it. It has also been laid down that there were many instances where a criminal color has been given to a civil dispute just to take the advantage of relatively quick relief. This exercise is nothing but an abuse of process of law which must be discouraged in its entirety.
34. In the case of Randheer Singh v. The State of U.P. and Ors., reported in (2021) 14 SCC 626, Hon'ble the Supreme Court has again cited Paramjeet Batra (supra) to quash the (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (19 of 23) [CRLMP-1374/2021] criminal proceedings and mentioned that High Court should not hesitate in quashing the criminal proceedings if the dispute is of civil nature and has been given color of criminal offence.
35. In the case of Kapil Agarwal and Ors. v. Sanjay Sharma and Ors., reported in AIR 2021 SC 1241, Hon'ble the Supreme Court discussed about how disputes of civil nature given criminal color are used as a weapon to harass the opposite party and the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 CrPC.
36. In the case of Naresh Kumar & Ors. v. The State of Karnataka, reported in Criminal Appeal No. 1510 of 2024 (Arising out of SLP (Crl.) No. 1570 of 2021) Decided On:
12.03.2024, Hon'ble the Supreme Court again recognised that the High Court should not hesitate to quash the criminal proceedings which are essentially of civil nature to prevent the abuse of process of the Court.
37. Essentially the present matter between the parties is simply of civil nature and has been given a criminal colour to it and would not attract the criminal offence in any case as there was no criminal breach of trust and cheating involved, it can be ascertained that the FIR does not satisfy or fulfil the ingredients of cheating nor of criminal breach of trust.
38. At this juncture, it would be worthwhile to reproduce the relevant paragraphs of the factual report dated 04.07.2024 prepared by the investigating officer and submitted before the (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (20 of 23) [CRLMP-1374/2021] Court by learned Additional Government Advocate; so also its translation. The same is being reproduced as under: -
ekeys gktk esa ,lhlh izkbZosV fyfeVsM fuEckgSMk dEiuh ds vdkmaV uEcj 5020019447031 ls vfer Mkaxh dh ifRu mtafy tSu ds vdkmaV uEcj 50100144594276 es fnukad 15-09-2017 dks 30 yk[k :i;s VªkUlQj fd;s rRi"pkr fnukad 20-08-2019 dks vfer Mkaxh ds vdkmaV uEcj 5010071758146 esa fnukad 20-08-2019 dks ;qch bUosLVesUV foØe vkatuk }kjk vfer Mkaxh ds mDr [kkrk uEcj esa 40]50]000]00 :i;s vkjVhth,sl ds tfj;s gLrkufUrfjr fd;s gS izdj.k esa izkFkhZ uqru dqekj tSu }kjk vatfy tSu ds vdkmaV uEcj 50100144594276 esa fnukad 15-09-2017 dks 30 yk[k :i;s VªkUlQj fd;s rks izkFkhZ }kjk mDr iSlk vatfy tSu ds [kkrs esa gLrkukUrj.k ds cnys dksbZ nLrkost psd ;k xkjaVh dk ,sxzhesUV izkFkhZ }kjk D;ks ugh fd;k x;k izkFkhZ }kjk ,QvkbZvkj esa vfHk;qDrx.k }kjk O;olk; dk vPNk izLrko nsuk vafdr fd;k ,o mDr O;olk; esa fuos"k djus ij izkFkhZ uqru dqekj tSu dks vR;Ur ykHk gksxk bl ckcr izkFkhZ }kjk foi{khx.k ls dksbZ ,xzhesUV ugha fd;k x;k ek= izkFkhZ }kjk foi{khx.k ds dFku ij fo"okl djrs gq, 30 yk[k :i;s fnukad 15-09-2017 dks VªkUlQj fd;s mlds i"pkr izkFkhZ }kjk mDr jkf"k ds cnys gj ekg O;olk; esa ykHk ugha izkIr gksus ij izkFkhZ }kjk foi{khx.k dks dkuquh uksfVl ugha fn;k x;k ,oa fnukad 21-01-2021 dks dfjc rhu lky ckn izkFkhZ uqru dqekj tSu }kjk mDr izdj.k ntZ djkuk ik;k x;k izdj.k esa foi{kh vatfy tSu ls fnukad 05-06-2024 dks izNrkN fd xbZ ,oa nLrkost is"k fd;s tks "kkfey i=kopth fd;s x;s izdj.k dk miyC/k nLrkostks ds vk/kkj ij xq.koxq.k ds vk/kkj ij izdj.k dk fulrkj.k fd;k tkosxkA rF;kRed fjiksVZ Jheku fd lsokus lknj izf'kr gSA layXu eqy i=koyh ¼fdrk 126½
39. An approximate translation of the above part of the factual report is felt apt to be incorporated here, the same reads as:-
During investigation, it was revealed that from the Account No.5020019447031 belonging to ACC Pvt. Ltd., Nimbahera a sum of Rs.30,00,00/- (Rs. Thirty Lacs) was transferred in the account of Smt. Anjali Jain on 15.09.2017 and thereafter on 20.08.2019, a sum of Rs. 40,50,00,000/- (Rs. Forty Crore and Fifty Lacs) was transferred from the account of UB Investment Vikram Anjana. Regarding the transfer of Rs.30,00,00/- (Rs. Thirty Lacs) in the account of Smt. Anjali Jain, the complainant did not executed any (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (21 of 23) [CRLMP-1374/2021] document. Further regarding investment in profitable business, the complainant did not executed any agreement or deed. Further after transfer of the amount of Rs.30,00,00/- (Rs. Thirty Lacs), the complainant did not receive any profit from the accused, still he did not give any notice to them and three years later he lodged the FIR on 21.01.2021. Interrogation was made from the Smt. Anjali Jain on 05.06.2024. On the basis of evidences on record further proceeding for disposal of the case shall be done on it's merits. The factual report is being submitted before the Hon'ble Court.
40. A plain reading of the factual report would manifest that after conducting thorough investigation; even the investigating officer is of the view that the nature of transaction between the two was predominantly of a civil nature and he found no criminality in it. After taking into consideration the entire material, more particularly the factual report as well as considering the submissions made at the Bar, this Court is of the view that as on date, prima facie, no case is made out against the petitioners. It is emanating from the factual report dated 04.07.2024 produced before the Court by the public prosecutor that the allegations levelled by the complainant against the petitioners were not found proved by the police in express terms but by accepting it in subdued tone with timidity it is desired to be conveyed that no case is made out against the petitioners. It cannot be discerned that there was any intention of cheating as the petitioners and complainant were involved in a transfer of shares and it was done through petitioner no.1 and for the same the amount was transferred from the proprietor of Capricon Credit Pvt. Ltd. to the petitioner no.1. This Court is of the opinion that the complainant holds a big company who deals in huge amounts every day and (Downloaded on 05/08/2024 at 08:39:45 PM) [2024:RJ-JD:30398] (22 of 23) [CRLMP-1374/2021] getting induced by any person to invest such large amount does not reflect the picture which has been presented by the complainant, so, this points out that the transaction which took place between both the parties was a regular business transaction and nothing else. It can be ascertained from the facts of the case that petitioners were not having any intention to cheat as the allegations made by the complainant are false and for which no proof has been submitted. No material is available on record to infer that the amount taken by the petitioners was not taken as an advance token money for the sale of land rather it was done for any other illusory business deal and he was cheated under the illusion. The allegations of cheating apparantly does not making a good case for the prosecution rather it seems frivolous in nature, and to prove the same, no conclusive proof has been placed on record by the complainant which actually show that the petitioners have extracted money from him with a plain intention of cheating. This Court feels that the ingredients which are essential to constitute an offence under Section 406 of the IPC are blatantly or conspicuously missing. After minutely scrutinizing the nature of allegations as mentioned in the FIR, this Court feels that the nature of allegations as mentioned in the FIR impugned are not relatable to a criminal proceeding rather it involves a dispute of civil nature. In the peculiar facts of this case, this Court would like to follow the judgment passed by Hon'ble the Supreme Court in the case of Naresh Kumar (supra) wherein it is observed that the High Court should not hesitate to quash the proceedings which seems to be essentially a civil dispute between the parties. (Downloaded on 05/08/2024 at 08:39:45 PM)
[2024:RJ-JD:30398] (23 of 23) [CRLMP-1374/2021]
41. In view of the discussion made herein above, this Court feels that the allegations levelled in the FIR do not constitute an offence either under Section 406 or under Section 420 of the IPC, and therefore continuance of investigation in the above would be an abuse of process of law. Therefore, to meet the ends of justice this Court feels it just and proper to quash and set aside the FIR No.46/2021 registered at the Police Station Nimbahera, District Chittorgarh and all consequential proceedings initiated in pursuance thereof.
42. Accordingly, the criminal misc. petition is allowed and the FIR mentioned above, and all further proceedings undertaken in pursuance thereof are hereby quashed and set aside. The SHO concerned is directed to prepare a closure report and submit the same in the Court concerned within a period of 60 days after receipt of a copy of this order.
43. The complainant would be at liberty to take appropriate actions for the civil wrongs allegedly committed by the accused by approaching the appropriate forum.
44. The stay petition also stands disposed of.
(FARJAND ALI),J 364-Mamta/-
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