Allahabad High Court
Arvind Kumar Jain vs State Of U.P. And Another on 27 November, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 24225 of 2007 Applicant :- Arvind Kumar Jain Opposite Party :- State of U.P. and Another Counsel for Applicant :- Faneesh Mishra,Ramesh Kumar Shukla Counsel for Opposite Party :- Govt. Advocate,Mahendra Singh Yadav Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ramesh Kumar Shukla, learned counsel for applicant, Sri Mahendra Singh Yadav, learned counsel for complainant-opposite party-2 and learned AGA for State of U.P.
2. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash order dated 16.6.2007 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.1, Nagina, District Bijnor, in Complaint Case No.296 of 2006, Police Station Afjalgarh, District Bijnor, whereby applicant has been summoned to face trial under Sections 406, 420, 506 IPC.
3. It is contended that on the complaint moved by opposite party 2 in the Court of IInd Additional Judicial Magistrate, Nagina, statements of complainant and his witnesses were recorded by Court below and thereafter Court below has summoned the applicant to face trial under Sections 406, 420, 506 IPC vide order dated 16.06.2007.
4. The contents of application which has been treated to be complaint, read as under :-
^^;g fd ifjoknh us ,d o"kZ iwoZ 1 ebZ lu~ 2005 esa viuh t:jr ds fy, viuh iRuh ds tcjkr lksuk ¼gkFkks ds daxu o dkuksa ds dq.My½ otuh pkj rksyk vfHk;qDr vjfoUn dqekj tSu iq= veksyd pUnz tSu fuoklh ekS0 fpjaath yky dLck o Fkkuk vQtyx<+ ftyk fctukSj ds ikl fxjoh j[kdj nl gtkj :i;s lkykuk vBkjg :i;s lSdMk C;kt dh nj ls m/kkj fy;s FksA fnukad 30@4@2006 le; djhc nl cts fnu dh ?kVuk gS ifjoknh m/kkj fy;s x;s 10]000@& ¼nl gtkj :i;s½ vkSj ,d lky ds C;kt ds 1800@& :i;s dqy 11800@& :i;s ysdj vfHk;qDr vjfoUn dqekj tSu ds ikl mlds ?kj eksgYyk fpjUth yky dLck o Fkkuk vQtyx<+ igqapk vkSj vjfoUn dqekj tSu ls viuk tscj okil ekaxk rks vjfoUn dqekj tSu ifjoknh dk tsoj okil nsus dks ;g dgdj euk dj fn;k fd gekjs [kkrs esa ekpZ ds eghus esa C;kt tek gksrk gS ekpZ ds eghus esa C;kt tek u gksus ij tsoj csap fn;s x;s gSA vkSj tscj okil ugha feysxk ifjoknh us iqfyl fjiksVZ djus dks dgk rks vfHk;qDr vjfoUn dqekj tSu us ifjoknh dks /kedh nh fd vxj rw Fkkus x;k rks eSa ;gka cSBk gqvk gh Fkkus Qksu djds rq>s gh Fkkus esa cUn djk nwWaxk vkSj vxj tsoj dk fQj ls dHkh uke fy;k rks rq>s xkao ls vkrs le; taxy ds jkLrs esa gh tku ls ejok nwWaxkA ?kVuk ds xokg iqju flag o dqyoUr flag fuoklh x.k xzke pEir iqj pdyk Fkkuk c<+kiqj o ljthr flag fuoklh xzke e<+iqjh vkfn eqyfte vjfoUn dqekj tSu us lksus dh dher c<+ tkus ds dkj.k /kks[kk /kM+h o cnfu;rh ls ifjoknh ds tsoj dk cu dj fy;k gSA ftldh dher bl le; djhc 38000@& :i;s gS ifjoknh dh fjiksVZ Fkkuk vQtyx<+ esa ntZ ugha gqbZ gS ifjoknh us fnukad 1@5@2006 dks viuh fjiksVZ jftLVMZ Mkd ls iqfyl v/kh{kd fctukSj dks izsf"kr dh ysfdu vkt rd vfHk;qDr ds fo:) dksbZ dk;Zokgh ugha gqbZ blfy, ifjoknh @ izkFkhZ ekuuh; U;k;ky; dh 'kj.k esa vk;k gSA rkfd izkFkhZ @ ifjoknh dks U;k; fey lds vfHk;qDr vjfoUn dqekj tSu us /kkjk 406] 420] 506 Hkk0na0la0 dk vijk/k fd;k gSA vr% Jheku th ls izkFkZuk gS fd vfHk;qDr vjfoUn dqekj tSu dks ryc Qjek dj ckn lcwr ltk fn;s tkus o ifjoknh dk tsoj okfil fnykus tkus dk vkns'k ifkjr djus dh d`ik djsaA vfr d`ik gksxhA^* "That one year ago i.e. on 1st May, 2005 the complainant had borrowed ten thousand rupees with interest at the rate of 18 percent per annum from the accused Arvind Kumar Jain, s/o Amolak Chandra Jain, r/o Mohalla Chiranji Lal, Kasba and PS Afzalgarh, District Bijnor by mortgaging his wife's gold jewellery (bangles and earrings) weighing 4 tolas to him.
The incident occurred on 30.04.2006 at around 10 am. The complainant went to meet the accused Arvind Kumar Jain at his house at Mohalla Chiranji Lal, Kasba & PS Afzalgarh to return Rs. 10,000/- (Ten thousand rupees) borrowed by him along with annual interest of Rs. 1,800/- i.e. a total of Rs. 11,800/- and asked Arvind Kumar Jain to return the jewellery to him. Arvind Kumar Jain refused to return the jewellery to the complainant, saying, "Interest is deposited into my account in the month of March. The jewellery has been sold out due to non-deposit of interest in the month of March. The jewellery will not be returned." When the complainant informed that he would file a police complaint, the accused threatened him, "If you go to the police station, I shall get you locked there (police station) by just making a telephone call while sitting here itself. If you ask for the jewellery again, I shall orchestrate your murder on the jungle pathway itself while coming from the village." The witnesses of the incident are Pooran Singh and Kulwant Singh, residents of Village Madpuri etc. The accused Arvind Kumar Jain has grabbed the jewellery of the complainant by way of deceiving and with malafides due to hike in gold price, which is Rs. 38,000/- at this time. The complaint of the complainant has not been registered at PS Afzalgarh. The complainant has on 01.05.2006 sent his complaint to the Superintendent of Police, Bijnore through registered post but no action has so far been taken against the accused; hence the complainant/applicant has approached this Hon'ble Court so that he can get justice. The accused has committed an offence u/s 406, 420, 506 IPC.
Hence, your good-self is requested to summon the accused Arvind Kumar Jain and pass an order to punish him after the charge against him is proved and to get his jewellery returned to him.
It will be very kind of you."
(English Translation by Court)
5. From the perusal of complaint, I do not find that ingredients of Sections 420 and 406 I.P.C. are made out. Hence Court below, in my view, has clearly erred in law.
6. Section 420 is "cheating" which is defined in Section 415 and both these provisions read as under:
"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".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
"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."
7. In order to attract allegations of "cheating", following things must exist:
(i) The person deceived, delivered to someone or consented that certain person shall retain property.
(ii) Person deceived was induced by accused to do as above.
(iii) Such person acted upon such inducement and consequently was deceived by the accused.
(iv) Accused acted fraudulently or dishonestly.
(v) Accused did it intentionally.
(vi) such act or omission caused or likely to cause damage or harm to that person in body, mind, property or reputation.
(Emphasis added)
8. Then in order to attract Section 420 I.P.C., essential ingredients are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
9. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
10. In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
11. In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
12. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, 2000(4) SCC 168 Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
13. In S.W. Palanitkar and others Vs. State of Bihar and another, 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
14. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
"Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person 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, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest." (Emphasis added)
15. In Devender Kumar Singla Vs. Baldev Krishan Singh 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
16. In Indian Oil Corporation Vs. NEPC India Ltd., 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
17. Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
18. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
19. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
20. Looking to allegations made in complaint and in the light of exposition of law in respect of Section 420 IPC, as discussed above, I find that complainant himself has given jwellary to accused-applicant mortgaging the same as security for advancing loan of Rs.10,000/- on an interest of 18% per annum. He further says that on 30th April 2006 he went to accused-applicant with due money but accused-applicant said that accounting of interest is made in March and since payment was not made after March, jwellary have been sold. The basic ingredients of Section 420 read with 415 IPC i.e. dishonest inducement to person so deceived to deliver any property is clearly absent.
21. Once necessary ingredient is absent, offence under the said provision cannot be made out. In R.K. Vijayasarathy and others vs. Sudha Seetharam and others 2019(3) SCALE 563 in the similar circumstances Supreme Court has held that condition necessary for an act to constitute an offence under Section 415 IPC is that there was dishonest inducement by the Accused otherwise such offence is not made out.
22. There is nothing on the face of record to indicate that Accused-applicant dishonestly induced Complainant to deliver any property to him. In the circumstances, proceedings against Accused-applicant under Section 420 IPC is illegal and gross abuse of process of law.
23. Now, I come to Section 406 IPC, which also I do not find is attracted in the case in hand. It talks of punishment for "criminal breach of trust" which is defined in Section 405 I.P.C. and both these provisions read as under:
"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".
Explanation 1.-- A person, being an employer of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not, who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.-- A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid."
"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."
24. "Criminal breach of trust" talks of entrustment of property and dishonest misappropriation or conversion thereof for own use or dishonest use or disposal of property in violation of any direction of law prescribing mode in which property in which such trust is to be discharged, or of any legal contract by a person who has contravened the said provision.
25. In order to attract Section 405 IPC, not only entrustment with property, or entrusment with dominion over property is necessary but allegations should also show that person Accused dishonestly misappropriated or converted to his own use that property or dishonestly used or disposed of that property or willfully suffer any other person to do so and that such misappropriation, conversion, use or disposal is 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 discharge of such trust.
26. Construing Section 405 IPC in R.K.Vijayasarathy and others (supra) Court said :
"Entrustment is an essential ingredient of the offence. 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."
27. Complaint in the case in hand nowhere shows that there was any contravention of direction of law prescribing the mode in which trust was to be discharged or that there was any otherwise legal contract which has been violated. There is no averment that complainant had specific condition regarding repayment which has been violated by Accused-applicant. Thus, necessary ingredients of Section 405 IPC are also not satisfied. Hence, proceedings under Section 406 IPC are also illegal and amounts of gross abuse of process of law.
28. So far as offence under Section 506 IPC is concerned, allegations contained in application/complaint satisfy ingredients of aforesaid provision and in fact nothing has been argued before this Court even to suggest that Section 506 IPC is not attracted in this case.
29. In view of discussions made hereinabove, considering allegations contained in complaint in the case in hand and in the light of above authorities, proceedings to the extent it relate to Sections 406 and 420 IPC are liable to be quashed.
30. In the result, application is partly allowed. Impugned summoning order dated 16.06.2007 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.1, Nagina, Bijnor, as well as criminal proceedings in Complaint Case No. 296 of 2006 (Balveer Singh vs. Arvind Kumar Jain) to the extent it relate to Sections 406, 420 IPC, Police Station- Afjalgarh, District- Bijnor, are hereby quashed.
Order Date :- 27.11.2019 KA