Himachal Pradesh High Court
Rajiv Sharma vs State Of H.P. And Others on 31 July, 2024
Neutral Citation No. ( 2024:HHC:6092 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 336 of 2020 .
Reserved on: 17.07.2024 Date of Decision: 31.07.2024.
Rajiv Sharma ...Petitioner
Versus
State of H.P. and others
Coram
r to ...Respondents
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. B.S. Attri, Advocate. For the Respondents : Mr. Prashant Sen, Deputy Advocate General, for respondent No.1- State.
Mr. N.K. Thakur, Senior Advocate, with Mr. Sahil Thakur, Advocate, for respondents No.2 to 4.
Rakesh Kainthla, Judge The present petition is directed against the order dated 6.1.2020, passed by learned Additional Chief Judicial Magistrate, Court No.1, Una, (learned Trial Court) vide which the objections to the cancellation report were rejected and the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 01/08/2024 03:09:44 :::CIS 2Neutral Citation No. ( 2024:HHC:6092 ) cancellation report was accepted. (The parties shall hereinafter be referred to as they were arrayed before the learned Trial Court .
for convenience).
2. Briefly stated, the facts giving rise to the present petition are that the informant made a complaint in the Court of learned Chief Judicial Magistrate, Una stating therein that he was engaged in the business of Cable TV Network. Accused No.2 is the employee of National Fertilizers Limited and General Power of Attorney of accused No.3, who is engaged in the business of TV Cable Network. Accused No.1 is sister-in-law of accused No.2 and accused No.3 is the wife of accused No.2. A partnership Firm under the name and style of M/s Mata Baglamukhi Communication was formed in which accused No.3, the informant and Jatinder Kumar were partners. The partnership deed was executed on 30.4.2007 and the Firm started the business after obtaining necessary permission.
Accused No.3 appointed accused No.2 as General Power of Attorney vide GPA dated 15.6.2007. Accused No.2 represented to the informant that accused No.1 was the proprietor of M/s Shubh Cable Network and she did not want to continue with the business. She wanted to sell all the assets of the cable network ::: Downloaded on - 01/08/2024 03:09:44 :::CIS 3 Neutral Citation No. ( 2024:HHC:6092 ) including the decoders. Accused No.1 sold all the assets of M/s Shubh Cable Network to M/s Mata Baglamukhi Communication .
at Una. The business of the Firm continued till January, 2008.
Robin Sharma, Sunil Sharma and Sanjeev Jain filed a complaint against the informant on 8.2.2008 stating that they had appointed the informant as their Power of Attorney, who shifted the equipment to Jassal market and misappropriated the equipment of M/s Direct Cable Network, Una. He was using the equipment in the Firm being run in the name and style of M/s Mata Baglamukhi Communications. The police registered FIR No. 52 of 2008 and searched the premises of M/s Mata Baglamukhi Communication Cable Network. The police seized all the articles. Accused No.1 was also a partner in M/s Direct Cable Network, Una along with Dinesh Sharma, Indu Jain, Sunil Sharma and Robin Sharma. The informant told the police that he had purchased the articles from accused No.1 and the open market. Smt. Indu Jain applied for the release of the equipment.
Accused No.3 through accused No.2 also applied for the release of equipment. Four transmitters were released to accused No.3 and the remaining articles were released to Smt. Indu Jain, Robin Sharma and Sunil Sharma. Accused No.3 removed the ::: Downloaded on - 01/08/2024 03:09:44 :::CIS 4 Neutral Citation No. ( 2024:HHC:6092 ) assets of M/s Mata Baglamukhi Communication from the premises of the Firm without the consent of the complainant.
.
When the statements of Robin Sharma and Sunil Sharma were recorded in the Court, it was found that accused No.1 did not have any interest in M/s Shubh Cable Network and she was a partner in M/s Direct Cable Network. Accused No.1 to 3 represented that M/s Direct Cable Network was using the assets of M/s Shubh Cable Network and in this manner, they cheated the petitioner by selling the property which was not owned by them.
3. The application was sent to the police and the police registered the FIR. The police recorded the statements of the witnesses and found that there was a civil dispute between the parties; therefore, the police filed a report seeking the cancellation of the FIR.
4. The informant filed the objections asserting that the investigation was not conducted properly. He reproduced the contents of the complaint. He asserted that one of the partners Mr. Jitender applied for a registration certificate from the Department of Post. The certificate was issued to M/s ::: Downloaded on - 01/08/2024 03:09:44 :::CIS 5 Neutral Citation No. ( 2024:HHC:6092 ) Baglamukhi Communication through accused No.1, 2 and Mr. Jitender. Accused No.1 signed the application for registration .
of the Firm. Its record was not collected. The accused executed a forged sale deed in favour of Mr Jitender and sold the assets of M/s Shubh Cable Network, which were not owned by accused No.1. Mr Jitender also applied to M/s Zee Turner Ltd. He signed the subscriber agreement, as the sole proprietor of the Firm.
Statements of Sanjeev Jain and Nirmal Kumar show that accused No.1 had sold the assets of M/s Shubh Cable Network owned by Sanjeev Jain to Jitender Kumar without his consent. The investigation was not properly conducted. The handwriting was not taken. Accused No.1 shifted all the assets to Nangal causing loss to the informant. Hence, it was prayed that the objections be accepted and the police be directed to carry out the investigation.
5. Learned Trial Court held that the charge under Sections 406 and 420 of IPC cannot exist together. There was no entrustment. The informant failed to account for the money stated to have been handed over for doing the business.
Therefore, no case was made out against the accused.
::: Downloaded on - 01/08/2024 03:09:44 :::CIS 6Neutral Citation No. ( 2024:HHC:6092 ) Consequently, the objections were rejected and the cancellation report was accepted.
.
6. Being aggrieved from the order passed by the learned Trial Court, the petitioner has filed the present petition asserting that the learned trial court erred in accepting the cancellation report. Accused No.1 represented that she is the owner/proprietor of M/s Shubh Cable Network and wanted to sell all the assets. These were purchased by M/s Mata Baglamukhi Communications. Subsequently, the assets were seized at the instance of the partners of M/s Direct Cable Network. The articles were released in favour of the accused, whereas they belong to M/s Mata Baglamukhi Communication.
The learned Trial Court accepted the objections and sent the matter to the police for investigation. The Court had observed on 17.9.2019 that the investigation was not carried out properly and directed that further investigation be carried out; however, no further investigation was conducted. It was wrongly held by the learned Trial Court that no offence was made out. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
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7. The petition is opposed by filing a status report asserting that the police had conducted the investigation and .
found that no case was made out against any person. Hence, the cancellation report was submitted before the Court.
8. I have heard Mr B.S. Attri, learned counsel for the petitioner, Mr Prashant Sen, learned Deputy Advocate General, for respondent No.1/State and Mr N.K. Thakur learned Senior Counsel assisted by Mr. Sahil Thakur, learned counsel for respondents No.2 to 4.
9. Mr B.S. Attri, learned counsel for the petitioner submitted that the learned Trial Court had wrongly held that the matter was civil and no cognizable offence was committed.
Accused No.1 had falsely represented herself to be the owner of M/s Shubh Cable Network. The articles sold by her were seized by the police on the complaint of the partners of M/s Direct Cable Network. The informant sustained injury by the sale of the assets by accused No.1 which never belonged to her. Therefore, it was prayed that the present petition be allowed, the order passed by the learned Trial Court be set aside and the matter be remitted to the police for further investigation.
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10. Mr Prashant Sen, learned Deputy Advocate General, for respondent No.1/State submitted that the dispute was purely .
civil. There was no misappropriation or cheating. Learned Trial Court had rightly accepted the cancellation report. Hence, he prayed that the present petition be dismissed.
11. Mr. N.K. Thakur, learned Senior Counsel adopted the submissions of learned Deputy Advocate General for respondent No.1/State.
12. I have given considerable thought to the submissions and have gone through the records carefully.
13. The informant stated that accused No.1 represented herself to be the owner of M/s Shubh Cable Network and sold the assets to M/s Mata Baglamukhi Communication, which was seized by the police on the complaint of M/s Direct Cable Network. He relied upon the sale deed in which accused No.1 stated that she had sold all the assets of the M/s Shubh Cable Network to M/s Mata Baglamukhi Communication and M/s Mata Baglamukhi Communication will be responsible for all liabilities of M/s Shubh Cable Network. This sale deed does not mention the price at which the sale was effected. It does not mention the ::: Downloaded on - 01/08/2024 03:09:44 :::CIS 9 Neutral Citation No. ( 2024:HHC:6092 ) details of the assets that were sold to Mata Baglamukhi Cable Network. There is nothing to connect the articles seized by the .
police on the complaint of M/s Direct Cable Network to this document. Therefore, the very basis of the complaint that accused No.1 had sold the assets of M/s Shubh Cable Network, which were seized by the police at the instance of M/s Direct Cable Network is not established.
14. The police recorded the statement of Sanjeev Jain, who stated that accused No.1 sold Shubh Cable Network to Jitender Kumar, partner M/s Mata Baglamukhi. Nothing could be found out about the assets of M/s Shubh Cable Network till the date of the statement. The statement does not show that the articles that were seized by the police belonged to M/s Shubh Cable Network, rather the statement shows that assets of M/s Shubh Cable Network could not be found.
15. No other witness has stated anything about the assets of M/s Subh Cable Network. Hence, the plea that accused No.1 had cheated the informant/petitioner by selling the articles that were seized by the police, as belonging to M/s Direct Cable Network, is not proved.
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16. The statement of the informant shows that an application was filed without his consent but the same will not .
constitute the commission of any offence.
17. The learned Trial Court had rightly held that the offences punishable under Sections 406 and 420 of IPC cannot co-exist because they require different mental intentions: while Section 406 of IPC requires the entrustment, Section 420 of IPC requires the delivery by dishonest inducement. It was laid down by Madras High Court in Vadivel vs. Packialakshmi 1996 Crl. L.J 300 that dishonest intention is the sine qua non to attract cheating and voluntary entrustment is necessary to constitute the breach of trust. Both these states of mind are mutually exclusive. It was observed:-
"8. Thus, it is seen that for identifying the concept of criminal cheating, as provided under Section 416 of the Indian Penal Code, the ingredients of fraudulent, dis- honest intention has become the basic sine quo non and if it is there or, identified, then it is to be further ascer- tained that as a result of which the person so represent must be made to deliver any property to the other and that the inducement must be inherent with the intention to keep the same or to utilise the said property for the use and utilisation of the person, who made such an induce- ment within such intention. Whereas in the concept of the criminal breach of trust, as defined under Section 405 of the Indian Penal Code, voluntary entrustment fol- lowing dominion over such property by one to the other ::: Downloaded on - 01/08/2024 03:09:44 :::CIS 11 Neutral Citation No. ( 2024:HHC:6092 ) person has become necessary to be identified and that the property has become necessarily disentitled, misap- propriated or converted in such a way as provided by the .
Section. If the ingredients set out in the above sections of the law are identified, upon the materials placed by the prosecution, then, Sections 406 and 420 of the Indian Penal Code respectively being the punishment sections come into operation.
However, while doing such legal exercises, it has become imperative for the Court to see that the criminal breach of trust and cheating, though, generally involves dishon-
est intention, but, both are mutually exclusive and dif- ferent in the basic concept, in the context that criminal breach of trust is voluntary and cheating, is purely on the basis of inducement with dishonest intention. In this re-
gard, I have to say my view that both the concepts of law for the respective offences are totally distinct, different and accordingly, mutually exclusive from each other. Unless and until these are adequate materials available and made before the Court of law, both offences can be dealt with together."
18. A similar view was taken by the Punjab and Haryana High Court in Jalpa Parshad Aggarwal v. State of Haryana, 1987 SCC OnLine P&H 580 wherein it was observed:
3. At the very outset it may be mentioned that this Court held in Iqbal Singh Randhawa v. Doctor Satpaul Goyal, 1977 C.L.R. (Pb. & Har.) 134, that an offence under section 406, Penal Code, 1860, is, an antithesis of an offence under section 420, Penal Code, 1860. In a case of criminal misappropriation, the property is voluntarily kept in the custody of an accused whereas in a case of cheating, the accused, by adopting deceitful means, induces the complainant to part with the property. Thus, an accused cannot be tried for these two offences simultaneously.::: Downloaded on - 01/08/2024 03:09:44 :::CIS 12
Neutral Citation No. ( 2024:HHC:6092 ) Either he has committed an offence under Section 406, Penal Code, 1860 or under Section 420, Penal Code, 1860.
19. Gujarat High Court also took a similar view in .
Rajendrakumar Chakravarti v. Co-operative Bank of Baroda, 1997 SCC OnLine Guj 87: (1997) 2 GLH 394: 1998 Cri LJ 216: (1997) 4 GCD 520 wherein it was observed:
"A person can alternatively be charged under Sections 406 to 409 or Section 420, I.P.C. It is true that the ingre- dients of Sections 406 to 409 and the ingredients of Sec- tion 420 are required to be considered. The offence under Section 406, 408 or 409 and the offence under Section 420 could not go together. But if the alternative charge is framed, it could not be said that an alternative charge is illegal and invalid."
20. In the present case, the informant asserted that accused No.1 had represented to Jitender Sharma, partner of M/s Baglamukhi Network that she is the owner of M/s Shubh Cable Network, which representation was false and Jitender Kumar was made to part with the money based on the misrepresentation. The sale deed does not show any transfer of the money and the plea that M/s Baglamukhi Cable Network suffered a loss due to the misrepresentation by the accused No.1 is not correct.
21. The allegations in the FIR clearly show that the dispute between the parties is purely civil and related to the sale ::: Downloaded on - 01/08/2024 03:09:44 :::CIS 13 Neutral Citation No. ( 2024:HHC:6092 ) of the cable network. A colour of criminality is being given to it by showing that misrepresentation was made, which caused .
harm to M/s Baglamukhi Cable Network. This was unsuccessful because the money stated to have been paid based on the misrepresentation was not specified. This is purely a civil dispute which was given the colour of criminal litigation. It was laid down by the Hon'ble Supreme Court in Vesa Holdings Private Limited and Anr. vs. State of Kerala and Ors., (2015) 8 SCC 293 that where the FIR does not disclose the criminal intention, the criminal proceedings cannot continue. It was observed: -
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception, there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.
In our view, the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."::: Downloaded on - 01/08/2024 03:09:44 :::CIS 14
Neutral Citation No. ( 2024:HHC:6092 )
22. It was laid down in Kapil Agarwal vs. Sanjay Sharma, (2021) 5 SCC 524: 2021 SCC OnLine SC 154 that Section 482 of .
Cr.P.C. is designed to ensure that criminal proceedings are not permitted to generate into weapons of harassment. It was observed:
"18.1. As observed and held by this Court in a catena of decisions, inherent jurisdiction under Section 482 CrPC and/or under Article 226 of the Constitution is designed to achieve a salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapons of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in the exercise of inherent powers, such proceedings can be quashed."
23. It is apparent from the allegations made in the complaint that the civil dispute is being given the colour of criminal litigation, which is not permissible as laid down by the Hon'ble Supreme Court in R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 and Usha Chakraborty v. State of W.B., 2023 SCC OnLine SC 90.
24. It was submitted that the learned Trial Court had ordered on 17.9.2019 that the investigation was not properly carried out and the police were directed to submit the report. No such report was submitted to the Court. This is factually ::: Downloaded on - 01/08/2024 03:09:44 :::CIS 15 Neutral Citation No. ( 2024:HHC:6092 ) incorrect as the status report dated 12.12.2019 is available on record. Learned Trial Court had gone through the status report .
as well as the material placed before it to conclude that no cognizable offence was committed in the present case.
25. Thus, there is no infirmity in the findings recorded by the learned Trial Court and the order passed by the learned Trial Court is sustainable.
26. Hence the present petition fails and the same is dismissed, so also the pending miscellaneous application(s), if any.
(Rakesh Kainthla) Judge 31st July, 2024 (Chander) ::: Downloaded on - 01/08/2024 03:09:44 :::CIS