Gujarat High Court
Idea Cellular Limited vs State Of Gujarat & on 15 March, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
IDEA CELLULAR LIMITED....Applicant(s)V/SSTATE OF GUJARAT R/CR.MA/12707/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO. 12707 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/- ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ================================================================ IDEA CELLULAR LIMITED....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MS RAJPUROHIT FOR MR AMIT M PANCHAL, ADVOCATE for the Applicant(s) No. 1 MS MOXA THAKKAR, APP. for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 15/03/2013 ORAL JUDGMENT
1 The present application is filed by the applicant - Idea Cellular Limited through its Deputy General Manager (Legal) u/s. 482 of the Code of Criminal Procedure, 1973 and has prayed for the following reliefs :
i) quash the FIR being C.R.No.I-70/2008 registered at Dwarka Police Station for offences punishable U/Ss. 406, 420 IPC;
pending admission and/or final disposal of this application, the investigation being carried-out by Dwarka Police in connection with C.R. No.I-70/2008 be stayed;
iii) pass such orders as thought fit in the interest of justice.
It may be noted that the present application being an application u/s. 482 of the Code of Criminal Procedure, 1973 the impugned FIR is to be considered, however, considering the fact and circumstances arising out of this application it is necessary to take note of the facts which arises in this application as enumerated under:
The applicant is Cellular Company and the first informant is Administrator of Shree Dwarkadhish Temple Trust.
It reveals from the record of this application, that the applicant company floated a scheme for its customers titled PRASAD IDEA before Janmashtami of the year 2008 whereby the applicant company informed its customers by in-house phone calls. According to the applicant the information which was given to the customers was to the effect that by charging Rs.50/- from its customers the applicant company would deliver PRASAD of Shree Dwarkadhish Temple at the door-step of the customer, who opts for the said scheme. Ms. Rajpurohit, learned Counsel of the applicant further informed the Court that the scheme so floated provided that the customer was asked to opt for such a scheme by sending Short Message Service (SMS) to the applicant company. It reveals from the record that the scheme interalia provided that on such application through SMS the applicant would deduct Rs.50/- from the Account of each of the customer who applies/opts for the said scheme. It further appears from the record that such scheme was floated between
2.8.2008 to 18.8.2008. The record of this application further reveals that as Shree Dwarkadhish Temple Trust came to know about such a scheme the same was objected to and impugned FIR itself indicates that Shri Gautam Kothari, an Executive of the applicant company was called personally on 29.8.2008, 14.8.2008 and 29.8.2008. The impugned FIR thus further indicates that said Shri Gautam Kothari personally went to Dwarka on 3.9.2008 and meeting took place between the office bearers of Shree Dwarkadhish Temple Trust, Poojaries and the said Executive of the applicant company. Impugned FIR further indicates that Shree Dwarkadhish Temple Trust through its Administrator also published a Public Notice on 22.8.2008 in Gujarati Daily Sandesh informing the public at large that the applicant company has not taken any prior permission of Shree Dwarkadhish Temple Trust for distribution of PRASAD . Impugned FIR further indicates that in the meeting which took place on 3.9.2008 it was decided that the applicant company would tender written apology with further stipulation in it that in future no such scheme shall be floated by the applicant company without prior permission of Shree Dwarkadhish Temple Trust. It was further decided in the very said meeting that after deducting the expenses of postal charges the applicant company would deposit the amount received from its customers with Shree Dwarkadhish Temple Trust for packets of PRASAD . Impugned FIR further reveals that after discussion with the higher-ups of the applicant company said Shri Gautam Kothari through written communication declined to do so.
The record further reveals that the applicant company instead of opting for the scheme, dropped the said scheme and re-credited the said amount of Rs.50/- to each customer who opted for the said scheme in their individual Accounts. It may be noted that this fact is noted by this Court (Coram : M.R. Shah, J.) while issuing notice and granting stay of further proceedings in pursuance to the impugned FIR vide order dated 2.10.2008.
It further appears that a letter written by the Deputy Administrator respondent no.2 herein, to P.S.I. Dwarka is treated by the police authorities as impugned FIR.
On further scrutiny of the impugned FIR it reveals that Shri Gautam Kothari, an Executive of the applicant Company is shown as an accused along with its officers and staff members. The FIR itself in the column of description of the offence recites that as the applicant accused collected Rs.50/- from its customers aggregated to Rs.2,25,000/- by inducing them to provide PRASAD at door step without taking any prior permission of Shree Dwarkadhish Temple Trust or its Administrator and thereby have cheated/committed breach of trust of the followers and Administrator of Shree Dwarkadhish Temple Trust and on this factual basis it is alleged that the accused have committed offence u/Ss. 406, 420 and 114 of IPC. It may further be noted that, the letter which is treated as FIR the allegation is of cheating only.
Ms. Rajpurohit for Mr. Amit Panchal, learned Advocate for the applicant has at the outset submitted that the impugned FIR is lodged on 26.9.2008 whereas the applicant company credited the Account of individual customers who had opted for PRASAD scheme by 11.9.2008. It was therefore contended that when the FIR was lodged the money which was received by the applicant company was re-deposited in the Account of individual customers.
It is contended by the applicant that in view of the fact that the money which was received by way of debiting the amount of individual customer is returned and therefore there is no lawful gain of the company nor the loss to the customers. Ms. Rajpurohit further contended that considering the provisions of section 415 of the IPC even if the impugned FIR is read as it is, no ingredients of cheating exists. Ms. Rajpurohit further submitted that similarly no offence as alleged u/Ss. 406, 420 r/w. 114 of IPC can be culled out from the bare reading of the impugned FIR. Ms. Rajpurohit for the applicant has further contended that the impugned FIR is frivolous and vexatious and as the same is lodged only because of the reason that the applicant company did not accede to the demand raised by Shree Dwarkadhish Temple Trust, of depositing the money received by the applicant company from its customers after deduction of postal charges. Ms. Rajpurohit therefore submitted that the impugned FIR is abuse of process of Court and law and the same is lodged only to harass the applicant accused and other company officials. It was therefore contended that the application be allowed as prayed for.
Per contra Ms. Moxa Thakkar, learned APP. has contended that the applicant company without taking consent of the temple Trust floated PRASAD scheme by charging Rs.50/-. Ms. Thakkar on the basis of the police papers further submitted that Shree Dwarkadhish Temple Trust received inquiry from such customers who were devotees of Lord Dwarkadhish. Ms. Thakkar further contended that by giving message to provide PRASAD of Lord Dwarkadhish and charging Rs.50/- for the same and then not providing any such PRASAD would constitute the offence of criminal breach of trust as well as cheating. Ms. Thakkar therefore submitted that the application deserves to be dismissed. Ms. Thakkar submitted that in the meeting held on 3.9.2011 the applicant company was asked to deposit the amount after deducting postal charges for distribution of PRASAD as per the scheme floated by the applicant and not by adhering the same amounts to cheating and the conduct of the applicant shows the intention on the part of the applicant company to cheat not only the devotees but also Shree Dwarkadhish Temple Trust. Ms. Thakkar has also provided original police papers for perusal of the Court.
Considering the aforesaid factual background which reveals from the record of the application, on consideration of the contentions raised by learned Counsel of both the sides and on perusal of the police papers this Court is of the opinion that except the fact that what was decided in the meeting dated 3.9.2008 which took place between Gautam Kothari, the Executive of the applicant company, the office bearers of Shree Dwarkadhish Temple Trust and Poojaries did not work out and the respondent no.2 who is Administrator of Shree Dwarkadhish Temple Trust which according to Ms. Thakkar is a government trust has put into motion prosecution by writing a letter to the P.S.I. which has been treated as FIR. At the outset it may be noted that it is not the case of the first informant that the applicant has obtained PRASAD without permission and same is delivered. It is also not the case of the first informant that Rs.50/- has been retained and no PRASAD is given. It is interesting to note that FIR is filed on the basis of order passed by District Collector, Jamnagar. There is nothing on record to show that there is any rule or law to obtain prior permission for getting PRASAD of Lord Dwarkadhish. However, keeping aside the said issue, all that the impugned FIR discloses is floating of a scheme, charging Rs.50/- for PRASAD of Lord Dwarkadhish. Shree Dwarkadhish Temple Trust agreed to provide PRASAD on applicant depositing Rs.50/- less postal charges and not adhering to what was agreed in the meeting dated 3.9.2008 is alleged as cheating of Shree Dwarkadhish Temple Trust as well as devotees. This Court is conscious of the fact that as the present application is for quashing the impugned FIR u/s. 482 of the Code the evidence is not to be appreciated. However, it is interesting to note that from the date on which the impugned FIR came to be lodged till the proceedings came to be stayed by this Court, 12 statements came to be recorded by the Investigating Agency. As indicated by learned APP. it appears that the statements are either of the employees of the temple Trust or its Poojaries. It is a matter of fact that no devotee of Lord Dwarkadhish has raised any complaint. The impugned FIR also does not disclose that Shree Dwarkadhish Temple Trust received any complaint or any customer of the applicant company. It further appears from the record of the application and as pointed out by Ms. Rajpurohit that the applicant re-credited the amount debited towards PRASAD scheme before the impugned FIR came to be lodged. It may further be noted that even if the impugned FIR is read at its face value what is alleged is cheating (chhetarpindi). Examining the averments made in the FIR if the provision of section 405 of the IPC are examined it cannot be said that the applicant was entrusted with the property or with any dominion over the property and has dishonestly misappropriated or converted to his own use that property, or has dishonestly used or disposed 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 the applicant has made touching the discharge of such trust. Similarly considering the provisions of section 415 of the IPC from the bare reading of the impugned FIR it cannot be said that the applicant has fraudulently or dishonestly induced the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induced 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.
11. At this stage, it would be advantageous to refer to the judgment of this Court in the case of Prakash Ramchandra Barot and others Vs. State of Gujarat and another, reported in 2012(1) GLR 449 wherein this Court has observed thus :
22. I may now consider whether the allegations in the complaint make out a case of 'criminal breach of trust' as defined under Section 405 of IPC.
The Section reads as follows :
"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 willfully suffers any other person so to do, commits 'criminal breach of trust'."
According to the Section, a 'criminal breach of trust' involves the following ingredients :
"(a) a person should have been entrusted with property, or entrusted with dominion over property;
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and
(c) that 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."
Taking into consideration the necessary ingredients to constitute an offence of 'criminal breach of trust', no case at all is made out by the first informant. If the dispute relates to the title of the land in question and if two sides claim to be the owner, then there is no question of any entrustment of the property or dominion over the property. It is not even the case of the first informant that the land in question was entrusted to the accused persons and they had dominion over the land and they have dishonestly misappropriated the same or converted it to their own use.
23.In the case of Onkar Nath Mishra v. State (NCT of Delhi), reported in (2008)2 SCC 561, a Bench of two Judges of the Supreme Court observed that two distinct parts were involved in the commission of the offence of criminal breach of trust. The first part consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is the misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. Therefore, in relation to the offence under Section 405 IPC, the first ingredient that needs to be established is "entrustment". In Common Cause v. Union of India, reported in (1999) 6 SCC 667, the Supreme Court held that:
"...
A trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405. The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner."
24. Now I may come to Section 420 of IPC. Section 415 of IPC deals with 'cheating' and reads as follows :
"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."
It is plain from a bare reading of the Section that to hold a person guilty of cheating, as defined in Section 415 of the IPC, it is necessary to show that at the time of making the promise he had fraudulent or dishonest intention to retain the property or to induce the person so deceived to do some thing which he would not otherwise do.
25. The ingredients required to constitute an offence of cheating have been succinctly laid down in Ram Jas v. State of U.P., reported in (1970) 2 SCC 740 as follows :
"(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
26. Similar views were echoed in Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. & Ors., reported in(2000)3 SCC 269, wherein it was observed that :
"In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfill the promise by itself would not attract the provisions of Section 418 or Section 420. Mens rea is one of the essential ingredients of the offence of cheating under Section 420. As a matter of fact Illustration (g) to Section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract...."
27. It is well settled that in order to constitute an offence of cheating, it must be shown that the accused had fraudulent or dishonest intention at the time of making the representation or promise and such a culpable intention right at the time of entering into an agreement cannot be presumed merely from his failure to keep the promise subsequently.
12. It would also be advantageous to refer to the judgment of the Apex Court in the case of State of Haryana Vs. Bhajan Lal reported in AIR 1992 SC 604, wherein in paragraph no.108 it is observed thus :
108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidencecollected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the oncerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
13. Considering the aforesaid on bare perusal of the impugned FIR this Court finds that no prima facie offence is made out u/Ss. 406, 420 and 114 of IPC and any further continuance of criminal proceedings pursuant to the impugned FIR would amount to abuse of process of Court and law. The ratio laid down by the Hon ble Apex Court in the case of State of Haryana (supra) as well as the ratio laid down by this Court in the case of Prakash Ramchandra Barot (supra) squarely applies to the facts of the present case and hence it is a fit case to exercise inherent jurisdiction u/S. 482 of the Code of Criminal Procedure.
14. In view of the foregoing therefore the application deserves to be allowed. The impugned FIR being C.R. No. I-70/2008 registered with Dwarka Police Station for the alleged offences u/Ss. 406, 420 & 114 of IPC is hereby quashed. Rule made absolute.
Sd/-
(R.M.CHHAYA, J.) M.M.BHATT Page 19 of 19