Madhya Pradesh High Court
Dr. Vijay Shankar Srivastava vs Sunil Kumar on 24 January, 2018
The High Court of Madhya Pradesh
M.Cr.C. No. 26964/2017
4
Jabalpur, Dated: 24/01/2018
Shri Anil Khare, learned senior counsel along with Shri
Abhijeet Awasthi, Advocate for the petitioners.
Shri Deepak Singh with Shri Yogesh Lokhande, learned
counsel for the respondent.
Heard.
The petitioners have filed this application under Section 482 Cr.P.C for invoking extraordinary jurisdiction of this Court, and to quash the proceeding of the Criminal Case No. 1411/2012, pending before J.M.F.C, Betul, for offence under Sections 420, 406 and 418 of I.P.C.
2. Bereft of the unnecessary details the facts just requisite for disposal of this petition are that the respondent- Sunil Kumar was a student of Om Ayurved Medical College, Betul. He deposited fee of Rs.15,000/- on 16.12.2009, Rs.10,000/- on 20.12.2009, Rs.79,000/- on 28.06.2010 and Rs.35,000/- on 14.02.2011. The petitioner filed a criminal complaint case before J.M.F.C, Betul, alleging that the petitioner has also deposited Rs.35,000/- on 20.12.2009. The Central Council of India, Department of Ayush has de-recognised the Om Ayurvedic Medical College, Betul being run by the petitioners/accused persons. The petitioners even after de-recognization has demanded and got the complainant deposit tuition fee of Rs.35,000/- knowing very well that the institution has been de-recognised. The petitioners/accused persons have committed offence under Sections 406, 417, 418, 420, 425 of I.P.C. The learned J.M.F.C has taken cognizance of the offence after the preliminary evidence and, subsequently, framed charge on 31.10.2017, for offence under Sections 420, 406 and 418 of I.P.C against the petitioners.
3. The petitioners have assailed the order of taking cognizance and the charges framed in the Criminal Complaint Case No. 1411/2012, pending before the J.M.F.C, Betul on the ground that the petitioners are innocent. The grievance of the complainant/respondent is that he deposited Rs.35,000/- after the de-recognization of the institution. But the petitioners came to know about the de-recognization only after they received the letter dated 27.06.2011. Therefore, on 20.12.2009 the amount of Rs.35,000/- has been deposited. It is not deposited after the said letter has been received by the office of Om Ayurved Medical College.
4. It is also contended that the petitioner had no knowledge that the institution will be de-recognised. Therefore, there is no mens rea. It is claimed that even after the said order dated 27.06.2011, the admit card for examination for the academic year of 2010-11 was issued to the respondent by Barkatullah University, Bhopal and subsequent thereto he appeared in the examination. It is also stated that by the order of the Directorate Indian Chikitsa Padhati And Homeopathy, the students of Om Ayurved Medical College, Betul were transferred to the other medical college. Subsequent thereto the petitioner appeared in the examination and he filed the complaint case (Annexures A/2) before the J.M.F.C, Betul.
5. The learned J.M.F.C after the preliminary evidence has framed charges as mentioned above.
6. On behalf of the petitioners the said order has been challenged on the ground that Om Ayurved Medical College has not been impleaded as an accused in the case. The dispute is of civil nature and is given the colour of the criminal case. The complaint/respondent was admitted in the college in 2009 when the college was duly recognized. The college was, subsequently, derecognized in the year 2011. Even after revocation of the recognization, the students were allowed to take transfer in colleges and continued their studies. The allegations and the grievances of the complainant are completely directed towards Om Ayurved Medical College. The petitioners are unnecessarily dragged into the controversy. The petitioners, therefore, pray to quash the proceeding and he order dated 31.1.2017.
7. On behalf of the respondent, the petitioners' contentions are vehemently opposed and it is stated that the petitioners never intended to study at Bhopal. After the de-recognisation, the petitioners have obtained Rs.35,000/- as tuition fee from the complainant which was improper in their part. He had given notice to the petitioner Nos. 1 to 2 in this regard on 14.09.2011. Reply of the same was given to the complainant on 19.09.2011 by the petitioner Nos. 1 and 2. The institution de-recognised by Central Council of Indian Medicine Department, Ayush Govt. of India at 134 so that Om Ayurved College was de-recognised which was affiliated to Barkatullah University for running BAMS course. It is also mentioned that as per recommendation of CCIM, GOI, issued order, to transfer all students in other permitted colleges of the State, vide the government letter dated 22.12.2010. It is claimed that the petitioners had of the knowledge of derecognizagtin on 22.12.2010. Therefore, it was mala fide in their part to deposit Rs.35,000/- from the complainant/respondent. It is also claimed that the respondent/complainant had no other alternative except to participate in the examination after receiving the admit card from Barkatullah University, Bhopal and pursue the studies but he never intended to study at other place then Betul. But because of the petitioners he had to pursue his studies elsewhere in the above circumstances.
8. Heard the arguments and perused the record.
9. Keeping in view the circumstances in which the de- recognisation has been done even though the students have been accommodated in other colleges for appearing in the examinations but no extra fee has been charged by the petitioners from the respondent/complainant. Therefore, the petitioners had mala fide intention that cannot be inferred.
10. For the offence under Section 420 of I.P.C the basic requirements are that:-
(i) There must be deception i.e. the accused must have deceived someone;
(ii) That by the said deception. The accused must induce a person,
(a) to deliver any property; or
(b) to make, alter or destroy the whole or part of the valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property.
(iii) That the accused did so dishonestly.
11. For the purpose of offence under Section 406 of the I.P.C, the essential ingredients are as follows:-
(i) Entrusting any person with property or with any dominion over property;
(ii) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or
(b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation
(i) of any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such trust.
12. For the offence under Section 418 of I.P.C, the essential ingredients are as follows:-
(i) That the accused was bound by law or legal contract to protect the interest of a person;
(ii) That the accused cheated such a person;
(iii) That such obligation related to the transaction involving the cheating;
(iv) That the accused did so having knowledge that by his act he was likely to cause wrongful loss to the person so cheated (and whose interests were bound to be protected by the accused).
13. In all the above cases, the element of mens rea is necessary. Intention is clearly a mental state and a type of legal fault. Whether the act must have been done intentionally, voluntarily, knowingly, dishonestly or fraudulently has to be proved. The guilt mind may be fraudulent mind or a dishonest mind or a negligent or rash mind. Every offence under the Code virtually imports the idea of criminal intent or mens rea in some form or the other. In the present case, the doctrine of mens rea is not applicable as there was no deliberate act of the petitioners. An accused should not be found guilty of an offence under the criminal law unless he has got a guilty mind. The absolute liability is not to be lightly presumed but has to be clearly established. The onus lies on the prosecution to establish mens rea beyond all reasonable doubts.
14. In the present case, the respondent/complainant has deposited an amount of Rs.35,000/- as tuition fee before the Om Ayurved College, Betul on 14.02.2011 and the letter which has been received by the college, intimating the de-recognition was on 27.06.2011.
15. Even if presuming that this amount has been deposited by the petitioners/complainant on 14.02.2011, with due arrangement with the colleges, all the students including the complainant was allowed to join in a different college and, subsequently, the Barkatullah University, Bhopal issued admit cards. The complainant appeared in the examination though he had to leave Betul for the same. It could be inferred from the circumstances that when the college was not de-recognised, the petitioner deposited fees thrice earlier. Therefore, the de-recognization was done by the Authorities after the 3rd installment of fees. The matter if considered in totality, there seems to be civil liability at the most, but it has been given a colour of a criminal nature.
16. In this regard it would be appropriate to mention that the withdrawal of re-cognization is made under the Indian Medicine Central Act, 1970 under Section 21 of the Act which reads as:-
(i) When upon report by the inspector or the visitor, it appears to the Central Council-
(a) that the courses of study and examination to be undergone in, or the proficiency required from candidates at any examination held by, any University, Board or medical institution, or
(b) that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University, Board or medical institution or in any college or other institution affiliated to the University, do not conform to the standard prescribed by the Central Council, the Central Council shall make a representation to that effect to the Central Government.
(2) After considering such representation, the Central Government may send it to the Government of the State in which the University, Board or medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the University, Board or medical institution, with an intimation of the period within which the University, Board or medical institution may submit its explanation to the State Government.
(3) On the receipt of the explanation or, where no explanation is submitted within the period fixed, then, on the expiry of that period, the State Government shall make its recommendations to the Central Government. (4) The Central Government, after making such further inquiry, if any, as it may think fit, may, by notification in the Official Gazette, direct that an entry shall be made in the appropriate Schedule against the said medical qualification declaring that it shall be a recognized medical qualification only when granted before a specified date, or that the said medical qualification if granted to students of a specified college or institution affiliated to any University shall be recognized medical qualification only when granted before a specified date or, as the case may be, that the said medical qualification shall be recognized medical qualification in relation to a specified college or institution affiliated to any University only when granted after a specified date.
17. In the case of Sarabjit Singh Vs. State of Punjab And Ohters, (2013) 6 SCC 800, the Apex Court has held that:-
"This is surely a case of no evidence. It is a case where accusations have been levelled without supporting material. Despite a clear indication in the order passed by the High Court, such supporting material has still not been made available for perusal of this Court. Therefore, in the facts and circumstances of this case, we are satisfied, that in the absence of any material whatsoever to support the charges levelled by the appellant Sarabjit Singh in the first information report dated 10.01.1998, the High Court was justified in quashing the said first information report by invoking its jurisdiction under Section 482 of the Code of Criminal Procedure."
18. In the case of Mohammed Ibrahim And Others Vs. State of Bihar And Another, (2009) 8 SCC 751, the Apex Court has held that:-
"This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G.Sagar Suri Vs. State of U.P., (2000) 2 SCC 636 and Indian Oil Corpn. Vs. Nepc India Ltd., (2006) 6 SCC 736) Let us examine the matter keeping the said principles in mind."
19. From the course of above narration of the factual position, it emerges that the complainant/respondent has not been able to produce any material on the basis of which it can be established his claim that the petitioners have cheated the respondent/complainant. This Court is satisfied that the complaint filed by the respondent with the sole aim to harass the petitioners. Therefore, adverse inference is drawn against the complainant.
20. In absence of any material to prove the mens rea as has been stated above, the complaint case is not justified. Hence, this petition is allowed with the observation that if deemed fit, the complainant may seek civil remedy. The Criminal Complaint Case No. 1411/2012 pending before J.M.F.C, Betul is quashed.
(Sushil Kumar Palo) JUDGE awinash Digitally signed by AWINASH CHANDRA Date: 2018.01.29 09:52:50 +05'30'