Uttarakhand High Court
Dr. Satish Jain Etc. vs State Of Uttaranchal And Anr. on 28 September, 2005
Equivalent citations: 2006CRILJ1172
Author: J.C.S. Rawat
Bench: J.C.S. Rawat
ORDER J.C.S. Rawat, J.
1. The challenge under Section 482 of Criminal Procedure Code (for the short 'Cr.P.C.') is the order of the learned Chief Judicial Magistrate, Udham Singh Nagar dated 14-11-2003 (annexure 11 to the petition) passed in complaint case No. 5292 of 2003 Ashok Kumar Khurana v. Dr. Satish Jain and Ors. P.S. Rudrapur district Udham Singh Nagar by which the learned Chief Judicial Magistrate took the cognizance and summoned the applicants under Sections 420 and 406 IPC.
2. The facts in brief relating to these petitions are that the respondent No. 2 Ashok Kumar Khurana filed complaint case No. 5292 of 2003 in the Court of Chief Judicial Magistrate, Udham Singh Nagar against the applicants and Smt. Manju Jain under Sections 420/406 IPC. It is alleged that the respondent No. 2 was resident of Adarsh Colony Rudrapur (Udham Singh Nagar). It was alleged that the relations between the parties were cordial and the applicants generally used to visit the house of the respondent No. 2. It is alleged that the respondent No. 2 asked the applicants to sell a plot at Faridabad, Haryana. On 6-10-2002 the accused persons came at the residence of the complaint and asked the complainant to purchase plot No. 35 situated in Sector 21 A area 1050 square yards at Faridabad. On 8-10-2002 the complainant -respondent No. 2 went at Faridabad and the accused persons went to show the plot. On 21-10-2002 the parties agreed to sell the plot for a consideration of Rs. 20 lacs out of which a sum of Rs. 2 lacs was paid in advance for which an agreement was executed between the parties and the balance amount was to be paid on 20-6-2003. The complainant respondent on 1-6-2003 informed the applicants that he will pay the balance amount and they should be ready for execution of the sale deed. When the applicants refused to execute the sale deed on telephone he went on 2-6-2003 at the residence of the applicant and he saw that there was a construction over the said plot.
3. The learned Magistrate recorded the statement of the complainant on 6-10-2003 under Section 200 Cr. P.C. and, Yograj Arora (CW2), Mohit Kumar (CW 3) Under Section 202 Cr. P.C. in which the witnesses narrated the story as indicated above. The complainant also filed the copy of the agreement. The learned Magistrate held that there are sufficient reasons to summon the accused and passed the impugned order summoning the applicants accused under Section 420/406 IPC fixing 29-12-2003.
4. I have heard the learned Counsel for the applicants and learned A. G. A. for the State and perused the record. Notices were sent to respondent No.2 through the CJM concerned. As per the report of the CJM concerned, no such person is residing on the given address. Thereafter a notice was published in the Dainik Jagran newspaper on 5-11-2004. In spite of the said publication none appeared for respondent No. 2.
5. Sri Sandeep Tandon, learned Counsel for the applicants urged that the learned Magistrate has erred in taking the cognizance under Sections 420/406 IPC because the perusal of the complaint reveals that the necessary ingredients of the offence breach of trust and cheating were not made out. As such there was no ground available for the Magistrate to summon the accused persons. For the sake of arguments, it is admitted that there was an agreement between the parties. The dispute between the applicants and the respondent is purely of civil nature arising out of a contractual relationship even looking to the sworn statements, terms of the agreement no case is made out to proceed against the applicants on criminal side. It was further contended that the essential ingredients of the offence under Section 406 IPC were not made out. Similarly the essential ingredients of the offence under Section 415 IPC also were not satisfied. It was further con-tended that as per the allegations in the com-plaint and the sworn statements recorded under Sections 200 and 202 Cr. P.C. he was cheated at Faridabad as the entire transaction took place at Faridabad and the disputed property is also situated at Faridabad (Haryana) and the learned Magistrate ought not to have assumed the jurisdiction to entertain the said complaint pertaining to the property situated outside Uttaranchal and the offence can only be tried at Faridabad. The learned Counsel for the applicants further contended that the respondent No. 2 has given his address as resident of "Adarsh Colony Rudrapur". On inquiry the applicants came to know that all the addresses given by the complainant and his witnesses are fictitious and the complainant and his witnesses are not residing on the alleged addresses and no such per-sons are residing at the given addresses.
6. Before examining the respective contentions on merit I think it appropriate to scrutinize the legal position in this regard. While exercising the inherent powers under Section 482 Cr. P. C. the High Court has to look at the object and purpose for which the power is conferred on it under the said pro-vision. Exercise of inherent power is avail-able to the High Court to give effect to any order under Cr. P. C. or to prevent abuse of process of any Court otherwise to secure the ends of Justice. In appropriate cases to pre-vent judicial process for being an instrument of oppression or harassment in the hands of frustrated or vindictive litigation. Exercise of inherent power is not only desirable but necessary also so that the judicial forum of Court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 Cr. P. C. to quash the very issue of process the High Court on the facts and circumstances of the case should exercise the power with circumspection as stated to re-ally serve the purpose and object for which they are conferred. The inherent power can be exercised when the allegations made in the complaint, even if they are taken at their face value and accepted in its entirety do not prima facie constitute any offence or make out a case and the complaint does not disclose any offence where uncontroversial allegations are made in the complaint and in sworn statements do not disclose the com-mission of the offence the inherent power can be exercised. The Court can invoke the jurisdiction u/S. 482 Cr. P. C. where the allegations in the complaint are so absolute and inherently improbable on the basis of which no prudent person can reach to a just conclusion that there are sufficient grounds for proceeding against the accused and the complaint and the sworn statements and the other attending circumstances reveal that the complaint has been filed with male fide intention or with ulterior motive for wreaking vengeance on the accused with a view to spite him due to private and personal grudge. Under Section 482 Cr. P. C. the High Court has very wide power and the very plentitude of power require great caution in its exercise the High Court must be careful with its decision in exercise of this power is based on sound principles and the High Court should not exercise this power to quash the legitimate prosecution. (See Medical Chemical and Farms Pvt. Ltd. v. Biological E. Ltd. , Madhya Ray J. India v. H.C. Here R.P. Kapok v. State of Punjab , State of Mariana v. Baja All 1992 (Supp) 1 SCC 335 : 1992 Cry LJ 527, S. W. Plantar v. State of Bihar .
7. The essential ingredients in order to constitute a criminal breach of trust are (I) that the accused was entrusted with property or with dominion over property: (ii) dishonestly misappropriated or converted that property to his own (iii) dishonestly using or disposing of that property or willfully suffering any other person was so to do a violation (a) of any direction of law prescribing the mode in which such trust is to be discharged (b) of any legal contract made touch-in the discharge of the trust. In order to constitute an offence the ingredients of cheating are :--
(i) There should be a fraudulent or dishonest inducement of a person by deceiving him.
(ii) The person so deceived should be induced to deliver any property to any person.
(iii) To consent that any person shall retain any property, or intentionally inducing that person to do or omit to do anything which if 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.
8. Thus, it is clear from the perusal of the above sections that a guilty intention is essential ingredient of the offence of cheating and the criminal breach of trust. The prosecution must establish the mens rea on the part of the accused. Every act of breach of trust may not be resulted in a penal of-fence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil Courts but any breach of trust with a mens rea gives rise to a criminal prosecution as well. It has been held in Hart Prasad Chamaria v. B.K. Surekha and Ors. :---
We have heard Mr. Maheshwarit on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Indian Penal Code. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does riot disclose the commission of any offence on the part of the respondents under Section 420 Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35.000/- There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35.000/- by deceiving him. It is further not the case of the appellant that a representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability on the respondents for the offence of cheating.
For determining the question, it has to be kept in mind that the distinction between mere breach of Contract and the offence of criminal breach of trust and cheating are fine one. In case of cheating, it depends upon the intention of the accused at the time of inducement, which may be judged by a sub-sequent conduct but for this the subsequent conduct is not the sole test but mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed. Therefore, it is his intention, which is the gist of the offence. Whereas for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence after breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership of it must be of some other person. The accused must hold that property on trust of such other person. But the offence, i.e. the offence of breach of trust and cheating involve dishonest intention but they are mutually exclusive and different in basic concept. There is a distinction between criminal breach of trust and cheating. For cheating criminal intention is necessary at the time of entrustment. In criminal breach of trust mere proof of entrustment is sufficient. Thus in case of criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriated the same. Whereas in case of cheating, the offender practices fraudulent or dishonest to inducement with another person, to deliver the property. In such situation both the offences cannot co-exist simultaneously.
9. It is well settled position of law that, the enquiry as envisaged under Section 202 Cr. P. C. it is extremely limited only to the assumption of truth or falsehood of the allegations made in the complaint on the material placed by the complainant before the Court as to whether a prima facie case is made out to take the cognizance against the accused. At this stage the complainant cannot advert to any defence with which the accused may have. The allegations made in the complaint and the sworn statements of the witnesses may be taken at their face value and if the complaint and the sworn statements do not disclose the essential ingredients of an offence against the accused, the Court cannot proceed to issue of process. The Court while issuing the process has to take precaution that the complaint should not be an instrument in the hands of private complaint as vindictive.
10. Now I shall examine the facts of the present case in the light of the above observations. It is alleged in the complaint and the sworn statements that the complaint entrusted a sum of Rs. 2 lacs to the accused applicants and an agreement was executed between the parties. It is not alleged in the complaint that to whom this money was given. It is merely alleged in the complaint in para No. 7.(SIC)
11. It is further alleged in para No. 11 of the complaint that the father of Dr. Satish Jain, Rakesh Jain, Vinesh Kumar Jain were present at the time of the transaction and they also assured to the complainant that the transaction would be completed according to the terms of the contract. There is no evidence on record that the intention of the accused persons was dishonest and to misappropriate the said amount. Taking the complaint and the sworn statements at their face value, it cannot be said that even a prima -facie case under Section 406 IPC is made out. The complainant respondent No.2 should have alleged In the complaint or in the shown statements with regard to dishonest, fraudulent and misappropriation of the amount as indicated above. As such no offence is made out under Section 406 I. P. C.
12. Wrongful or illegal act of cheating may give again rise to a criminal action when it is clear from the complaint or shown statements that essential ingredients are made out. From the material that was placed before the Magistrate even prima facie case for cheating is not made out. It is in complaint and the sworn statement that on 6-10-2002 all the five accused mentioned in the complaint came to Rudrapur and proposed to see of their plots at Sector 21A, Faridabad and all the accused executed the agreement to sell the same plot on Rs. 20,00,000/- only. Out of the said amount a sum of Rs. 2,00,000/- was received by applicants. When the accused were asked to execute the sale deed they denied the existence of any agreement. It is also alleged that the complaint was duped by the accused applicants. As pointed out earlier in para No. 7 of the complaint that the amount was given to all the accused. On the other hand in para No. 11 of the complaint it has been alleged that the transaction took place in presence of Nirmal Kumar Jain, father of applicants No. 1 and 2. The allegations made against the applicants are vague and bald and the complainant has not proved the mens rea in the sworn statements. In order to constitute an offence of cheating the intention to deceive should be in existence when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep the promise subsequently cannot be presumed as an act leading to cheating.
In view of the above discussion the essential ingredients as envisaged under Sections 406 and 415 IPC are not made out.
13. It was pointed out that the applicant Satish Jain was the Professor in the department of Neurology in A. 1.1. M. S., New Delhi. After taking voluntary retirement, Satish Jain is doing private practice.
14. It was contended that the present complaint is manifestly alluded with mala fide and this complaint had been filed maliciously with an ulterior motion for wreaking vengeance on the applicants with a view to spite them to private and personal grudge. It was further contended that the alleged dispute is in regard to the 1050 sq. yard land of plot No. 35, Sector 21A Faridabad. The said property was purchased by the applicants in the month of January 2002, for which an agreement of construction was executed on 16-6-2002 with Ahuja Builders a partnership firm consisting of two parties Sri Suresh Ahuja and H. R. A. Ahuja. The said builder has raised false and frivolous disputes and has filed civil suit for permanent injunction against the owners of the property and the said suit is pending before the Civil Judge, Faridabad. The Civil Judge, Faridabad issued the local commission and the Commissioner inspected the spot on 26-12-2002 and submitted its report on 2-1-2003. The learned counsel for the applicant further concluded that he had filed the commission report as annexure-3 to the petition which shows that the construction work of basement, first floor and ground floor was fully completed and the finishing work of first floor and second floor still to be completed. It was pointed out that the applicants registered a case against the partners of the Ahuja Builders under Sections 420, 406, 506 I. P. C. in Faridabad Police Station and they obtained the bail from the Court.
15. It was further pointed out the applicant Satish Jain was in Madrid, Spain out of India on 6-10-2002 to attend ILAE Genetic Commission Conference when the aforesaid alleged agreement was alleged to have been executed by the applicants. The applicants have filed passport visa Annex-ure-13 to the petition which shows that the applicant Satish Jain was in Madrid, Spain.
16. Perusal of the record reveals that there is litigation between the parties at Faridabad. The documents relating to the above litigations have been filed by the applicants. These documents show that there had been some construction over the disputed land. It is not permissible for the High Court to look into materials, the acceptability of which is essentially a matter of trial. While exercising Jurisdiction under Section 482 Cr. P. C., it is not possible for this Court to act as if it is a trial Judge. The learned counsel for the applicant contended that the Court cannot sit as trial Court, but these facts as contended reveals that the complaint was mala fide and improbable also. I will deal this contention later on when I will discuss the improbabilities and mala fides.
17. It was further pointed out that the applicants had alleged in their petition that the applicants made inquiry of the whereabouts of complainant -Ashok Kumar Khurana, then the applicants came to know that the address given in the complaint is false and fictitious and the complainant is not residing at the given address in the complaint and no such person exists in the address. It was further pointed out that after filing the petition, the notice was issued to the complainant at the address given in the complaint, but the Chief Judicial Magistrate concerned reported vide letter dated 17-4-2004 that according to the police report the complainant is not residing at the given address and the police has also attached certificate of a counsellor of the Municipality Board Ward No. 13 stating that the complainant does not reside in the colony. Thereafter, the Court made a publication in the newspaper in order to take service on the complainant. But, none appeared on behalf of the complainant. It was further pointed out that the respondent No.2 moved an application Annexure-5 to the petition to Police Station, Udham Singh Nagar on 15-9-2003 prior to filing of the complaint on the same allegations. It was pointed out that in Annexure-5 to the petition clearly shows that applicants came to Rudrapur on 20-10-2002 whereas in the complaint he stated that the applicants came to Rudrapur on 6-10-2002. It was high lighted that in the present complaint it was stated that on 6-10-2002 all five accused including applicants came to Rudrapur and proposed him to see their plot at Sector 21A Faridabad. But the application Annexure-5 to the petition was given to police on 15-9-2003 prior to the filing of the complaint. The complainant had stated that he himself showed his desire to purchase the above plot in Faridabad. The learned counsel further contended that the complaint is Improbable and concocted. This fact clearly reveals that the complainant does not reside at the given address. As such, the complaint has been filed by the some unknown person, who is not traceable.
18. In the instant case the complainant does not reside at the given address. The learned Magistrate had not put any question to ascertain the veracity & genuineness of the complaint. The Hon'ble Apex Court in M/s. Pepsi Food Ltd. v. Special Judicial Magistrate , in which it has been held as under :
Summoning of an accused in a, criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
In this case the Magistrate should have put the question to ascertain the veracity of the allegation made in the complaint.
19. In view of the foregoing discussion, I am of the view that the complaint, had been filed by a person indicating his wrong address. It creates a doubt about the veracity at the identity of the complainant.
20. In Vijay Shekhar and Anr. v. Union of India and Ors. 2004 SCC (Cri) p/1403 : 2004 Cri LJ 3857 a complaint was filed before the Magistrate under Sections 406, 420, 504, 506 IPC against the eminent persons of the country in which the bailable warrants were issued. While quashing the proceedings, the Court held that there is also serious doubt whether the procedure required under the Cr. P. C. was really followed by the Magistrate when the cognizance was taken. In this background of inherent falsehood that could be ex facie noticed from the contents of the complaint and coupled with the facts admitted by the parties to this petition, it is evident that the said complaint is a fraudulent one, hence, the same is liable to be quashed. In view of the above findings, the Apex Court quashed the proceedings.
21. The perusal of the record reveals that a civil suit for seeking permanent injunction is pending before the Civil Judge, Faridabad. The papers filed by the applicants show that there is a litigation between the applicants and the partners Ahuja Builders with regard to the construction. The commission was appointed by the Court and he submitted his report on 2-1-2003 that the construction work of basement had been completed. The construction of first floor and second floor had been completed taut the finishing work was yet to be completed. The record reveals that criminal proceedings were initiated against the partners of Ahuja Builders under Section 406/420 I. P. C. at Faridabad. Annexure 13 photocopy of visa and passport clearly reveals that the applicant Satish Chandra Jain was not in India on 6-10-2002 on which the agreement had been alleged to be executed by the applicant along with other applicants. It is also true that the complainant filed an application Annexure 5 to the petition to the Incharge of the Police Station, Udham Singh Nagar on 15-9-2003 prior to the filing of this application on the similar allegations. The applicants had alleged in his petition that they made enquiries as to the whereabouts of the complainant Ashok Kurnar Khurana and he came to know that such person does not reside in address given in the complaint. The notices were sent to the respondent No. 2 after filing of the petition but the C. J. M. reported that the respondent No. 2 did not reside in the given address. He based his report on the basis of the police report and an endorsement of the municipal counsellor on the area was obtained by the police at the time of the service. In the instant case, the agreement, which is said to have been executed between the parties, was executed on a stamp paper of Rs. 20/- and the said document was required to be registered in law as per Section 17(2) of the Registration Act (as amended by the State of U.P.) and as per Section 49 of the Act the unregistered document is a nullity in law and it cannot be taken into evidence. The property belongs to Faridabad and Haryana. Transaction of sale of the said property held at Udham Singh Nagar, Uttaranchal. Applicants, the seller of the property belongs to Faridabad and Delhi. Respondent No. 2, the purchaser does not reside at the given address. This fact shows that this transaction was shown at Udham Singh Nagar, Uttaranchal only to confer the jurisdiction of this Court otherwise the jurisdiction lies to Faridabad Court at Haryana. The above facts reveal that it is a counter blast of the litigation which is pending before the Faridabad Court. The property which is the subject matter of civil and criminal litigation in Faridabad, is the same in this criminal case. The above facts and circumstances leads to take the inference that the complaint against the applicant is alluded with mala, fides and had been initiated with an ulterior motive for wreaking vengeance. It has been held in the State of Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew 2004 SCC (Cri) P/ 2104 : 2004 Cri LJ 2011 the respondent filed a complaint against the appellants (six officers of the Orissa State forest Department) alleging that they had falsely implicated him for offences under the Orissa Forest Act, 1972 and the Wild Life (Protection) Act, 1972. He further alleged that being not content with the said illegal acts, they seriously assaulted him thereby committing offences punishable under Sections 341, 323, 325, 506 and 386 read with Section 34 IPC. Before the Sub-Divisional Judicial Magistrate (SDJM), the appellants took the stand that the complaint was lodged as a counterblast and retaliatory measure because a large quantity of ivory was seized from the complainant and he could not produce any material to justify the possession thereof. According to them, the acts of search, seizure and arrest were done in pursuance of their official duty and they could not be proceeded against without necessary sanction as contemplated under Section 197 Cr. P. C. The SDJM took the view that there was no necessity for sanction under Section 197. Thereafter the appellants preferred a petition under Section 482 Cr. P. C. before the High Court. The High Court after taking the view that Section 197 Cr. P. C. had no application to the facts of the case, rejected the said petition.
Before the Supreme Court the appellants contended that in relation to the offences committed by the respondent, he was produced before the Magistrate. While hearing the bail application of the respondent when the SDJM specifically asked the respondent as to whether there was any ill-treatment, he did not make any grievance of any ill-treatment and on the contrary admitted that there was no ill-treatment. The respondent got himself examined by a private doctor after three days of the alleged incident and the complaint was lodged after 13 days. The appellants submitted that the complaint instituted by the respondent was nothing but an abuse of the process of the Court and the High Court was not justified in holding that Section 197 Cr. P. C. was not applicable.
It was observed by the Apex Court in Para 20-21 as under : (2004 Cri LJ 2011, Para 21).
20. When the background facts of the case are considered, the question regarding applicability of Section 197 of the Code takes a temporary back seat. The factual scenario as indicated above goes to show that on 28-2-1991 the respondent was produced before the Magistrate. He was specifically asked as to whether there was any ill-treatment. Learned SDJM specially records that no complaint of any ill-treatment was made. This itself strikes at the credibility of the complaint. Additionally, the doctor who has examined him stated that for the first time on 2-3-1991 he treated the complaint. Though there are several other aspects highlighted in the version indicated in the complaint and the materials on record are there, we do not think it necessary to go into them because of the inherent improbabilities of the complainant's case and the patent mala fides involved. It is no doubt true that at the threshold interference by exercise of jurisdiction under Section 482 of the Code has to be in very rare cases, and this case appears to be of that nature. It fits in with category (7) of broad categories indicated in State of Haryana v. Bhajan Lal 1992 Cri LJ 527. It is to be noted that though plea regarding non-complaint before the Magistrate was specifically taken to justify interference, the High Court has not dealt with this aspect at all thereby adding to the vulnerability thereof.
23. The continuance of the proceeding by way of prosecution in this case would amount to abuse of the process of law."
24. In view of the above discussion, I am of the view that this is a fit case where the inherent power given under Section 482 Cr. P. C. can be exercised and the prosecution can be quashed. Therefore, the proceedings in complaint case No. 5292/2003 and the cognizance order dated 14-11-2003 passed by the Chief Judicial Magistrate, U.S. Nagar are liable to be quashed, hence these are quashed.