Allahabad High Court
Upnesh @ Tinku Yadav @ Upnesh Kumar vs State Of U.P. And Another on 5 September, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:144926 Court No. - 74 Case :- APPLICATION U/S 482 No. - 16269 of 2024 Applicant :- Upnesh @ Tinku Yadav @ Upnesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kumar Pandey,Mayank Awasthi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Ajay Kumar Pandey, learned counsel for applicants.
2. In present case, complainant has initially lodged an FIR against applicant, however, after investigation, final report was submitted. Later on, a protest petition was filed which was treated as complaint case and on basis of statement recorded under Section 200 and 202 Cr.P.C., applicant has been summoned to face trial under Sections 406, 504, 506 IPC. The impugned order in its entirety is quoted below -:
?05.05.2023 ???????? ??? ???? ??????? ?? ??????? ???????? ??????? ? ????? ???? ?? ????????? ?? ??????? ???????? ?? ??? ???? ?? ???? ?? ???? ???
??????? ??? ?????? ???? ?? ??? ?? ?????? ?? ?? ??????? ?????? ??? ??? ??? ??0-4 ?? ????? ???????? ??? ?? ?????? ??????? ??????? ??? ?? ??????? ??? ????? ?? ??? ?? ??????? ?? ??????? ???? ??? ??????? ?? ???? ?? ?????? ????? ???? ????? ???? ?????? ?????? 30.05.2016 ?? ??????? ?? ????? ?? ??? ?? 1746 ????????? ????? ??. ????? ???? 62,899/- ????? ??? ??? 10.06.2016 ?? 150 ??? ?????? ????? ???? 43,686/- ????? ???? ???? ??? ?????? 18.06.2016 ?? 160 ??? ?????? ????? ???? 46,598 /- ????? ??? ?????? 30.06.2016 ?? 180 ??? ?????? ???? 52.423 ??0 ??? ??? ????? ? ?????? ?? ???? 243,856 /- ????? ??? ?? ???? ???????? ?? ?? ??? ?? ???? ?????? ????? ??? ???? ?? ??? ?? ??? ??????? ??? ?? ?? ??? ?? ????? ?? ?????, ????? ???? ??????? ?? ??? ???? ??? ?? ?? ??? ?? ??? ???????? ????? ?? ??????? ?? ??????? ??? ??? ?? ???? ??????? ???? ???? ?? ?????? ????? ? ?????? ????? ?? ???? ???? ????? ????, ????? ? ?????? ????? ?? ???? '?? ?????? ???? ??? ???? ?? ??????? ?? ????? ????? ? ????? ??? ????? ? ???? ????? ????????? ????? ??? ???????? ?? ??? ??? ? ???? ??? ?? ????????? ?????? ?? ???? ??? ??????? ?? ????? ?????? ??????? ?? ????? ?? ????? ???? ???, ????? ??????? ????? ???? ????? ??? ?? ?????? ???? ????? ?????? 17.03.2020 ?? ??? 02:00 ??? ??? ?? ??????? ????? ???? ?? ???? ??? ?? ??? ???? ??????? ???? ?? ????? ?? ??????? ??? ?? ???????? ???? ????? ????? ?? ????? ???? ???? ??? ?? ???? ?? ??? ????? ???? ??, ???? ????? ???? ??????, ???? ????? ???? ?? ??? ?? ??? ????? ?? ???? ??? ????? ??????? ??? ?????? ???? ???, ?????? ??????? ?????? ????????????? ?????? ?????? ??????? ??????? ?? ???? ????? ??????? ???? ??????? ?????? ????????? ?????? ????????? ???? ???????? ???? ???, ???? ???????? ?????? ?????? ?? ??? ??? ???? ???? ?????
??????? ?? ???? ????? ?? ?????? ??? ???? 200 ???????? ?? ???????? ????? ?? ???? ????? ????? ??? ???? 202 ????????? ?? ???????? ?????????-1 ????? ???????? ??? ?????????-2 ?? ??? ??? ???? ????? ????? ?? ???? ????? ??????
????????? ??????? ?? ??? ??? ??????? ?? ????? ?? ??? ???? ? ??? ??? ? ???? ??? ?? ????????? ?????? ???? ????? ????? ?? ??? ???
???????? ?? ?????? ????? ???????? ??? ????? ??????? ?? ???? ?? ????? ??????? ????? ??????? ????? ???? ????? ???? ?? ??????? ????- 406, 504, 506 ????????? ?? ???? ?????? ???? ????
3. Learned counsel submits that even considering the contents of complaint, as referred above, as gospel truth, ingredients of Section 406 IPC may not make out.
4. He further submits that learned Magistrate has not even referred contents of statements recorded U/s 200 and 202 Cr.P.C. even in brief and as such requisite reasons as required to be reflected in impugned order passed U/s 204 Cr.P.C. are missing.
5. In support of his submissions, he has placed reliance upon a judgment in case of Arun Sharma and another vs. State of U.P. and another, 2024:AHC:108987 and relevant paragraphs are quoted below -:
?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)Ais a warehouse-keeper.Zgoing on a journey, entrusts his furniture toA, under a contract that it shall be returned on payment of a stipulated sum for warehouse room.Adishonestly sells the goods.Ahas committed criminal breach of trust.(c)A, residing in Calcutta, is agent forZ, residing at Delhi. There is an express or implied contract betweenAandZ, that all sums remitted byZtoAshall be invested byA, according toZ's direction.Zremits a lakh of rupees toA, with directions toAto invest the same in Company's paper.Adishonestly disobeys the directions and employs the money in his own business.Ahas committed criminal breach of trust.(d) But ifA, in the last illustration, not dishonestly but in good faith, believing that it will be more forZ's advantage to hold shares in the Bank of Bengal, disobeysZ's directions, and buys shares in the Bank of Bengal, forZ, instead of buying Company's paper, here, thoughtZshould suffer loss, and should be entitled to bring a civil action againstA, on account of that loss, yetA, not having acted dishonestly, has not committed criminal breach of trust.** (f)A, a carrier, is entrusted byZwith property to be carried by land or by water.Adishonestly misappropriates the property.Ahas 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 405 IPC 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 Mehtav.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 inThermax 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?.
16. In aforesaid circumstances, ingredients of Section 406 I.P.C. are not made out.
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.?
18. As referred above, the statements of complainant and witnesses and reasons assigned in impugned order also fall short to refer basic ingredients of Sections 504 and 506 I.P.C. since intentioned insult is missing. It does not have element of being likely to incite the person insulted to commit a breach of the peace as well as intent to cause alarm is also missing.?
6. In order to consider rival submissions, I have carefully perused the impugned order, as referred above, as well as relevant paragraphs of Arun Sharma (supra) and I am of considered opinion that case of applicant squarely falls within contours of Arun Sharma (supra) and as there is no allegation of entrustment as well as there is no allegation of intentional insult or criminal intimidation, therefore, impugned order dated 05.05.2023 passed in Complaint Case No. 20 of 2023 (Chetan Tripathi vs. Upnesh) arising out of Case Crime No. 642/2020 U/s 406, 504, 506 IPC, Police Station- Kotwali Nagar, District- Etah, pending before A.C.J.M., Jaleshar, Etah in present form does not survive, hence, set aside.
7. However, this order is passed without issuing notice to opposite party-2, therefore, this application is disposed of by remitting the matter back to concerned Court to pass a fresh order, after hearing complainant only, within 3 months from today.
8. Registrar (Compliance) to take steps.
Order Date :- 5.9.2024 N. Sinha