Allahabad High Court
Sanjay Kumar Varshney And Another vs State Of Up And Another on 18 September, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:151685 Court No. - 74 Case :- APPLICATION U/S 482 No. - 14541 of 2024 Applicant :- Sanjay Kumar Varshney And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar Roy Sharma Counsel for Opposite Party :- G.A.,Hanuman Prasad Dube,Vipul Dube Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Rajesh Kumar Roy Sharma, learned counsel for applicants and Sri Vipul Dube, learned counsel for opposite party No.2.
2. In the present case, complainant has filed a complaint, wherein learned Magistrate by an order dated 06.05.2022 has summoned the present applicants. The said order was challenged at the behest of applicants in a revision petition, which was allowed by an order dated 22.11.2022, whereby impugned order therein dated 06.05.2022 was set aside and matter was remitted back to pass fresh order.
3. In the aforesaid circumstances, learned Magistrate passed a fresh order dated 07.01.2023, whereby applicants being summoned under Sections 406, 504 I.P.C. The said order was challenged by applicants by way of filing a revision petition, however, this time it was rejected by an order dated 08.04.2024. Both orders are impugned in present case.
4. Learned counsel for applicants has made out a case for interference, as it is not under much dispute that there were commercial transaction between parties as well as that allegation of complainant that despite depositing Rs. 10,00,000/- with applicants, goods supplied were not to the tune of said amount and when after adjustment, remaining amount was asked to be returned, offence of criminal intimidation as well as criminal breach of trust was committed, however, basic ingredients to summon the applicants under Sections 406 and 504 I.P.C. are not present.
5. Learned counsel for applicants has also a substance in argument that in present set of facts, there was no entrustment, there was no dishonest, misappropriation in violation of any legal contract express or implied.
6. Learned counsel for opposite party No.2 has tried to convince the Court and to support the impugned order, however, failed, since on given set of facts, above referred ingredients are not present.
7. In the aforesaid circumstances, the Court takes note of a judgment passed by this Court in Arun Sharma And Another Vs. State of U.P. and Another, 2024:AHC:108987, wherein various judgments on ingredients of Sections 406 and 504 I.P.C. passed by Supreme Court were considered and for purpose of this case, relevant paragraph Nos. 13, 14, 15, and 17 are reproduced hereinafter :-
" 13. The expression 'entrustment' carries with it the implication that person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking it. The property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. (See Velji Raghavji Patel Vs. State of Maharashtra, (1965) 2 SCR 429 & the State of Gujarat Vs. Jaswant lal (1968) SCR 2 408)
14. At this juncture, few paragraphs of Deepak Gaba and others Vs. State of U.P. and another (2023) 3 SCC 423, being relevant are reproduced hereinafter :-
"14. Section 406IPC [ "406. 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."] prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405IPC are satisfied. For Section 406IPC to get attracted, there must be criminal breach of trust in terms of Section 405IPC. [ "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".***Illustrations***(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. Adishonestly sells the goods. A has committed criminal breach of trust.(c) A, residing in Calcutta, is agent forZ, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z toA shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.***(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust."(Explanations 1 and 2 and Illustrations (a) and (e) to Section 405IPC are excluded, as they are irrelevant.)]
15. For Section 405IPC to be attracted, the following have to be established:
(a) the accused was entrusted with property, or entrusted with dominion over property;
(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646]
17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. The complaint does not directly refer to the ingredients of Section 405IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC.
28. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471IPC, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Ltd. v. K.M. Johny [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650] , as it refers to earlier case laws in copious detail."
15. In above background, it would be evident that there was a commercial transaction between two firms without any element of 'entrustment'. As soon as goods were handed over to purchaser, the seller loses ownership over it. There is no material or document that in absence of default of payment purchaser has to return the goods or on demand of seller, the purchaser has to return the goods sold. Further there is no material or evidence of 'dishonest intention'.
17. So far as other offences under Section 504 and 506 I.P.C. are concerned, it would be relevant to mention few paragraphs of Mohammad Wajid and Another Vs. State of U.P. And Others, 2023 SCC OnLine SC 951 and relevant paragraphs are reproduced hereinafter: -
"SECTIONS 503, 504 AND 506 OF THE IPC
24. Chapter XXII of the IPC relates to Criminal Intimidation, Insult and Annoyance. Section 503 reads thus:--
"Section 503. Criminal intimidation. --Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Illustration A, for the purpose of inducing B to resist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation."
25. Section 504 reads thus:--
"Section 504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
26. Section 506 reads thus:--
"Section 506. Punishment for criminal intimidation. --Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
27. An offence under Section 503 has following essentials:--
1) Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person is interested.
2) The threat must be with intent;
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
28. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised selfcontrol or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.
29. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:--
"To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds."
(Emphasis supplied)
30. A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant.
31. In the facts and circumstances of the case and more particularly, considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable under Section 506 of the IPC may probably could be said to have been disclosed but not under Section 504 of the IPC. The allegations with respect to the offence punishable under Section 504 of the IPC can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the accused persons. What exactly was uttered in the form of abuses is not stated in the FIR. One of the essential elements, as discussed above, constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present.""
8. I have also carefully perused the summoning order, wherein though learned Magistrate has considered the ingredients of Section 406 I.P.C., however, it has not been considered in terms of facts as well as above referred judgments were also not taken note of. The same error also has been committed by Revisional Court. The dispute is arising out of a commercial dispute. Ingredients of entrustment, intentionally misappropriation in violation of any contract are absent as well as no offence under Section 504 I.P.C. was also made out.
9. In the aforesaid circumstances, both impugned orders dated 08.04.2024 passed by Additional Sessions Judge, Court No.3, Aligarh in Criminal Revision No.154 of 2023 (Sanjay Kumar Varshney and another Vs. State of U.P. and another) and order dated 17.01.2023 passed by Additional Chief Judicial Magistrate, Court No.-3, Aligarh in Complaint Case No.1680 of 2021 (Raj Kumar Sharma Vs. Sanjay Kumar Varshney) under Sections 406, 504 I.P.C., Police Station- Lodha, District- Aligarh are set aside since on given set of facts of case, no offence is made out under Sections 406 and 504 I.P.C.
10. Accordingly, application is allowed.
Order Date :- 18.9.2024 P. Pandey