Gujarat High Court
Samay Singh Meena vs State Of Gujarat on 5 July, 2024
NEUTRAL CITATION
R/CR.MA/19611/2022 ORDER DATED: 05/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 19611 of 2022
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SAMAY SINGH MEENA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
VAISHALI V PATIL(9139) for the Applicant(s) No. 1
MR Y J PATEL(3985) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 05/07/2024
ORAL ORDER
1. Rule. Learned APP Mr.H.K. Patel waives service of Notice of Rule on behalf of respondent-State and learned advocate Mr.Y.J. Patel waives service of notice of Rule for the respondent No.2.
2. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicant has prayed to quash and set aside the FIR being C.R.No.11189003221221 of 2022 registered with A Division Police Station, Morbi City, Morbi, for the offence under Sections 406, 420, 465, 467, 468 and 471 of Indian Penal Code, 1860 and other proceedings arising therefrom qua them.
3. Brief facts of the case are that the complaint is filed at the instance of respondent No. 2 alleges that Samay Singh Meena, the petitioner, engaged in fraudulent activities with Hirenbhai Mansukhbhai Patel, who operates 'Patel General Store' in Morbi.
Page 1 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined Mr.Meena, employed as a Manager at Reliance Mall, purportedly accepted Rs.17,35,000/- from Patel for cosmetic goods, issuing fake bills totaling Rs.10,07,790/- and promising to deliver the goods, which never arrived. When Mr.Patel confronted Mr.Meena at Reliance Mall, discrepancies emerged, leading Mr.Patel to report the incident to the General Manager, Mr.Vimalbhai, who confirmed the bills were forged. Mr.Meena, allegedly involved in online gambling losses and suicidal actions, mentioned Patel in a note. In this regard, the present complaint is filed.
4. Heard Ms. Vaishali V. Patil, learned counsel for the applicant, Mr.H.K. Patel, learned APP for the respondent State and Mr. Y.J. Patel, learned counsel for respondent No.2.
5. Learned advocate for the applicant has submitted that complainant has not produced any evidence qua paying such huge amount and there is a bar to give an amount more than 20,000/- in cash and in connivance and in collusion of Manager of Reliance Mall, the present proceedings being initiated and the present applicant has nothing to do with the offence. Hence, he has requested to allow the present application.
5.1. Learned advocate for the applicant has submitted that there is no evidence linking the present petitioner with the alleged offence, and any information provided by the complainant is motivated by malice and lacks merit. The petitioner vehemently denies committing any offence and asserts that the FIR contains only general allegations and 23 Page 2 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024 NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined forged bills, manufactured by the complainant himself, without other supporting proof regarding the alleged transaction of Rs.17,35,000/- in cash for cosmetic goods. It is specifically mentioned that despite implicating the petitioner as Assistant Manager of Reliance Mall, the complainant did not name the company or its General Manager Mr.Vimalbhai Hathi as accused, indicating collusion between them. It is alleged that between 16th July to 28th July, 2022, during the petitioner's hospitalization, the complainant and Mr.Vimalbhai conspired to fabricate false bills and maliciously registered the FIR afterward. It is further submitted that that the complainant's claim of purchasing goods worth lakhs without proper tax invoicing raises suspicion of tax evasion, potentially involving collusion between the complainant and Mr.Vimalbhai.
5.2. Learned advocate submitted that even taken at face value, the FIR should be quashed as the complainant omitted material facts and is involved in fraudulent activities himself. Additionally, it is alleged that the complainant and Vimalbhai ensnared the petitioner into gambling, causing significant financial loss and subsequent threats of false accusations and suicide abetment. The petitioner's suicide attempt on 16 th July, 2022, resulted in hospitalization, with subsequent medical evidence supporting his severe depression and ongoing treatment. In view of above, the learned advocate for the applicant has requested to allow this application, asserting that the allegations lack substantive evidence and risk misusing the legal process.
Page 3 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined 5.3 Learned advocate for the applicant has relied on the decision of the Hon'ble Supreme Court rendered in case of Indian Oil Corporation Vs. NEPC India Ltd, reported in 2006 (6) SCC 736, and submitted that the said act does not attract the provisions of cheating and criminal breach of trust. Mere breach of trust is not giving any cause to file criminal proceedings.
6. Per contra, learned APP for the State has opposed the present application. He also submitted that, with a view to dupe the money of the complainant, the applicant has created a drama by consumed poisonous substance. Hence, there was intention of cheating on the part of the applicant and this is not a case of merely breach of trust. Hence, no case is made out to exercise extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C and therefore, present application deserves to be dismissed.
7. Learned counsel for respondent No.2 has opposed the present application by adopting the submissions made by learned APP and submitted that, the applicant is involved in white collar offence. He has committed the offence of criminal breach of trust and cheating. Hence, complaint is filed against the applicant for the offence of cheating and criminal breach of trust.
8. Having heard learned counsel for the parties and perusing the material placed on record, it is an undisputed fact that, present applicant employed as a Manager at Reliance Mall, Page 4 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024 NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined purportedly accepted Rs.17,35,000/- from Patel for cosmetic goods, issuing fake bills totaling Rs.10,07,790/- and promising to deliver the goods, which never arrived. Only crux of the matter is that, as per the say of the applicant, offence under Sections 406 and 420 of Indian Penal Code, 1860 is not made out and cannot go simultaneously and only with a view to recover the money, complaint came to be filed and civil proceedings have given a cloak of criminality. This Court has given anxious thought qua the said position of law and this Court is fully agree with the arguments made on the part of the applicant that only with a view to recover the money, no criminal proceedings should be allowed and no offence under sections 406 of Indian Penal Code, 1860 is made out in absence of any entrustment of the property. It is needless to say that each and every case is required to be decided on different facts and merit.
9. Prior to deal with the submissions, relevant provisions of Indian Penal Code, 1860 are required to be considered, which are as under:-
"Sec.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".The essential ingredients of the offense of criminal breach of trust are:-Page 5 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024
NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined (1) The accused must be entrusted with the property or with dominion over it, (2) The person so entrusted must use that property, or;
(3) The accused must dishonestly use or dispose of that property or willfully suffer any other person to do so in violation, (a) of any direction of law prescribing the mode in which such trust is to be discharged, or; (b) of any legal contract made touching the discharge of such trust.
28. "Entrustment" of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, 'in any manner entrusted with property'. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of 'trust'. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.
"Sec-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"."
The essential ingredients of the offense of cheating are:
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that person-
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no so Page 6 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024 NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined deceived, and which act or 23 (2009) 8 SCC 1, omission causes or is likely to cause damage or harm to that person in body,mind,reputation or property.
32. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
33. Section 420 IPC defines cheating and dishonestly inducing delivery of property which reads as under: -
"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."
34. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.
35. To establish the offence of Cheating in inducing the delivery of property, the following ingredients need to be proved:-
1. The representation made by the person was false
2. The accused had prior knowledge that the representation he made was false.Page 7 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024
NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined
3. The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
4. The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.
36. As observed and held by this Court in the case of Prof. R.K. Vijayasarathy & Anr. Vs. Sudha Seetharam & Anr. 24 , the ingredients to constitute an offence under Section 420 are as follows:-
i) a person must commit the offence of cheating under Section 415;
and
ii) the person cheated must be dishonestly induced to;
a) deliver property to any person; or
b) make, alter or destroy valuable security or anything signed or 24 (2019) 16 SCC 739 sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 Indian Penal Code, 1860."
10. Perusing the allegations levelled in the complaint, prima facie, it appears that this is not a simple case of commercial transaction or the recovery. It appears that there is a clear cut allegations levelled against the present applicant that the accused has received Rs. Rs.17,35,000/- to provide cosmetic goods and for that, he has issued the bills and has given assurance to supply the goods. Then the complainant approached the accused qua bill issued on the Reliance Mart being Bill Nos.7, 8, 10, 12, 15, 16, 17, 18, 19, 26, 27, 28, 29, 30, 31 Page 8 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024 NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined and 32. Total 23 bills were given and applicant stated that after 5 days, he will supply the goods on 16.07.2022 and after pocketing the said amount, he did not supply the goods, the complainant has approached the Manager of the Reliance Mart and he came to know that the said bills being forged. In this regard, the statement of Manager of Reliance Mart is recorded and when incident unearth the accused consumed poisonous substance. Prima facie, entrustment of the property is there and there was an intention since inception on the part of the accused, after pocketing the money, he did not supply the goods and intention of the cheating is also proved and breach of trust is also proved. Hence, offence under Section 504, 506 and 420 is also made out. So far as second bill is concerned, the bill in the name of Reliance Mart being issued. Total 23 bills were given and the said bills were forged, which is used as a genuine.
Considering the aforesaid fact, the offence of the forgery is also committed and accused has received wrongful gain dishonestly and caused wrongful loss to the complainant.
Perusing the allegations levelled in the complaint, it appears that prima facie involvement of the accused is there and other defence is raised by the accused, which amounts to defence and dispute question of the fact is required to be adjudicated during the trial.
11. To make out an offence of cheating, the cheating would allude from the transactions and crux of the matter is that, with malafide intention, the accused has taken wrongful gain. It is not Page 9 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024 NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined necessary to reproduce all allegations as verbatim which satisfy all ingredients of offence in the body of the complaint. Here in the case, during investigation, sufficient material is collected and going through the said material and statement recorded during investigation, it discloses the commission of offence.
12. It is needless to say at this stage that, court should not hold mini trial, but prima facie involvement of the accused is found and complaint is not filed with mala fide intention or with a view to tarnish the image of the applicant, then question does not arise to invoke the power under Section 482 of the Cr.P.C.
13. Further, criminal proceeding would have to proceed entirely based on the allegations made in a complaint or the evidence collected during the investigation. It is not justified to embark inquiry or to hold mini trial qua genuineness or credibility of the material collected during the investigation and Court cannot go into correctness or otherwise of the material collected by the prosecution. In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Manik B. vs. Kadapala Sreyes Reddy & Ors. reported in 2023 Live Law 642 (3 Judges' Bench) as mini-trial is not permitted while exercising jurisdiction under Section of 482 of Cr.P.C.
14. It is worthwhile to refer to the decision of Hon'ble Supreme Court in the case of Supriya Jain vs. State of Haryana reported in 2023 LiveLaw (SC) 494. Further, in the case of Ramveer Upadhyay & Anr. vs. State of U.P. & Anr. reported in 2022 Page 10 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024 NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined OnLine SC 484, Central Bureau of Investigation Vs. Aryan Singh etc., reported in 2023 SCC Online Sc 379 and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra reported in 2021 SCC OnLine SC 315, it is observed and held as under:
"Even though, the inherent power of the High Court under Section 482 of the CrPC, to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the CrPC is not be exercised for the asking."
15. Even, in light of the law laid down in the case of Mohammed Wajid vs. State of U.P. reported in 2023 LiveLaw (SC) 624, mere delay is not a ground to quash the complaint. Herein, this Court has closely examined the allegations made against the accused persons in the complaint and prima facie offence is made out.
16. Whatever contentions raised by the applicant are defences of the applicant, which cannot be looked into at this stage in exercise of power under Section 482 of the Cr.P.C. and this Court should not hold mini-trial while exercising inherent jurisdiction under Section 482 of the Cr.P.C. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Rajeev Kourav vs. Baisahab and Others reported in (2020) 3 SCC 317, wherein, it has been observed and held that, evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of criminal proceedings and High Court cannot embark upon the appreciation of evidence Page 11 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024 NEUTRAL CITATION R/CR.MA/19611/2022 ORDER DATED: 05/07/2024 undefined while considering the petition filed under Section 482 of the Cr.P.C for quashing of criminal proceedings, if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.
17. In wake of aforesaid discussion, present petition fails and same is hereby dismissed. Rule is discharged.
However, it is needless to say that, the observations made in the order are tentative in nature.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 12 of 12 Downloaded on : Mon Jul 08 21:12:04 IST 2024