Madhya Pradesh High Court
Santosh B.Shukla vs The State Of Madhya Pradesh on 21 February, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 21st OF FEBRUARY, 2022
MISC. CRIMINAL CASE No. 8135 of 2022
Between:-
SANTOSH B.SHUKLA S/O BHOLANATH SHUKLA,
AGED ABOUT 36 YEARS, H.NO.4, ARIHANT
APARTMENT SHANTI PARK, MEERA ROAD, EAST
THANE, MUMBAI (MAHARASHTRA)
.....PETITIONER
(BY SHRI R.N.SINGH, SENIOR COUNSEL ASSISTED BY SHRI
SIDDHARTH GULATEE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
P.S.GANDHINAGAR P.S.GANDHI NAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI PRAMOD SAXENA, GOVERNMENT ADVOCATE )
This application is taken up for hearing and the Court has passed
the following:
ORDER
This petition under Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C") has been filed on behalf of applicant/accused Santosh B Shukla S/o. Bholanath Shukla seeking quashing of the First Information Report registered at Police Station Gandhi Nagar, District Bhopal pertaining to Crime No.273/2018 for the offence under Sections 420, 467, 468, 471 of the Indian Penal Code, 1860 (for short "I.P.C").
Learned Senior Counsel appearing for the applicant submits that the applicant had entered into a contract with Airport Authority of India for carrying out certain work & had furnished bank guarantee for a sum of Rs.27,10,400/- for undertaking the work of vehicle parking at Raja Bhoj Airport, Gandhi Nagar, Bhopal. The aforesaid bank guarantee was Signature SAN Not obtained from Bank of India, Mira Road, Thane, Mumbai (Maharashtra) Verified Digitally signed by but in the First Information Report, it is mentioned that the applicant AMIT JAIN Date: 2022.02.24 18:29:00 IST 2 forged the bank guarantee of Rs.27,10,400/- whereas fact of the matter is that the Bank Guarantee No.0120-IPEBG-16009 was admittedly obtained on 22.7.2016 & it was closed on 3.8.2016. Thus, the contention of the complainant that the applicant forged the bank guarantee is not made out as is apparent from the clarification issued by the Bank on 24.8.2018 contained in Annexure A/8 annexed with M.Cr.C No.2159/2022, the second application under Section 438 of the Cr.P.C seeking anticipatory bail to the applicant.
It is also submitted by learned Senior Counsel for the applicant that the money was deducted from the account of applicant and all these facts were brought to the notice of the Airport Authority of India vide letter dated 30.8.2018 (Annexure A/12) informing the Airport Authority of India that the original bank guarantee was furnished to the Airport Authority of India then how the bank guarantee was returned to the Bank & why the Bank did not confirm from the Airport Authority of India, which reveals conspiracy and plot to defame & damage the applicant's firm. It is further mentioned in the aforesaid communication that the decision of the authority be reviewed and coercive action be stopped as it was damaging the reputation & business of the firm.
It is further submitted by learned Senior Counsel for the applicant that the tender was invited on 21.11.2015 for the period from 12.4.2016 to 11.4.2019. The work order was issued in favour of the applicant and the Bank had informed that the aforesaid bank guarantee was not issued. Thereafter, the Bank clarified that the bank guarantee was issued on 22.7.2016 but was encashed on 3.8.2016 upon specific request letter signed & furnished by the applicant himself. On 7.9.2018, the bank guarantee was replaced by a fresh fixed deposit of Rs.27,10,400/- & on 1.7.2019 after successful execution of the contract, No Dues Certificate was issued by the Authority. However, the amount of fixed deposit was 3 sought to be adjusted towards the dues under a different contract when in Writ Petition No.17073/2019, the High Court directed refund of Fixed Deposit back to the applicant. There was no element of cheating as the bank guarantee was closed four months after the contract.
Referring to Paragraph Nos.20 & 21 of the judgment of the Supreme Court in the case of S.W.Palanitkar & Others versus State of Bihar & Another (2002) 1 SCC 241, it is submitted by learned Senior Counsel for the applicant that if there is no entrustment of property then the question of dishonestly converting it to their own use so as to satisfy the ingredients of Section 405 of the I.P.C punishable under Section 407 of the I.P.C will not be made out.
Referring to Paragraph No.15 of the judgment of the Supreme Court in the case of Hridaya Ranjan Prasad Verma & Others versus State of Bihar & Another (2000) 4 SCC 168, learned Senior Counsel for the applicant submits that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of 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.
Learned Senior Counsel for the applicant places reliance on Paragraph No.22 of the judgment of the Supreme Court in the case of Sheila Sebastian versus R.Jawaharaj & Another (2018) 7 SCC 581 to contend that applying the principle of strict interpretation of penal statute, the charge of forgery cannot be imposed on a person, who is not maker of the same.
4Learned Government Advocate for the non-applicant/State submits that prima facie the ingredients of the offence of cheating & forgery are writ large and, therefore, this petition is liable to be dismissed.
After hearing learned counsel for the parties and going through the record, it is evident that even dishonest concealment of fact is a deception within the meaning of Section 405 of the I.P.C. The basic ingredient of Section 415 of the I.P.C requires deception of any person, fraudulently or dishonestly induces that person, so deceived, to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces that person to do or omit to do 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. Infact, there are two different classes of acts, which the person deceived may be induced. In the first class of act, he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of act 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 act, the inducing must be fraudulent or dishonest whereas in the second class of act, the inducing must be intentional but not fraudulent or dishonest.
In the case of Hridaya Ranjan Prasad Verma & Others versus State of Bihar & Another (supra), the aforesaid fine distinction has been noted in Paragraph No.14 of the judgment & it is evident from the facts narrated above that the applicant encashed the bank guarantee during subsistence of the contract, which the Airport Authority of India would not have done & permitted if they were not so deceived, therefore, prima facie the ingredients of Section 415 of the I.P.C punishable under Section 420 of the I.P.C are made out.
5As far as the issue of difference between the breach of contract & the offence of cheating is concerned, it is held by the Supreme Court in the case of M.A.A.Annamalai versus State of Karnataka & Another (2010) 8 SCC 524 that the primary requirement to make out an offence of cheating under Section 415 of the I.P.C punishable under Section 420 of the I.P.C is that dishonest or fraudulent intention at the time of inducement is made.
In the present case, it is evident from the notice contained in Annexure P/11 dated 29.8.2018 that In Reference No.3, the allegation against the present applicant is of submitting a forged bank guarantee of Bank of India, Mira Road, Thane, Mumbai (Maharashtra) dated 29.3.2016. It is evident from the communication contained in Annexure A/8 dated 24.8.2018 made by the Bank of India, Mira Road, Thane, Mumbai (Maharashtra) that Bank Guarantee No. 0120-IPEBG-16009 was opened on 22.7.2016 for a sum of Rs.27,10,400/- & was closed on 3.8.2016. Thus, it is apparent from the document produced by the applicant himself as contained in Annexures P/8 & P/9, which is a copy of the bank transaction that on 22.7.2016, there was a debit transaction for funding account for a sum of Rs.27,10,400/-. Thus, no bank guarantee for a sum of Rs.27,10,400/- was issued by the Bank of India on 29.3.2016 and it is not a case of merely breach of trust but that of cheating.
Lot of emphasis is placed by learned Senior Counsel for the applicant that there was no forgery of the document inasmuch as there is admission of the Bank that they had issued said bank guarantee on 22.7.2016 & closed it on 3.8.2016 whereas the fact of the matter is that the applicant had admittedly submitted the bank guarantee dated 29.3.2016 for taking contract starting for the period from 12.4.2016 to 11.4.2019 whereas no bank guarantee for the aforesaid sum was issued by the Bank 6 of India on 29.3.2016.
Thus, it is evident that the document, which was produced by the applicant purported to be bank guarantee issued by the Bank of India, Mira Road Branch, Thane, Mumbai (Maharashtra) dated 29.3.2016 was a false document made by the applicant as the Bank of India had informed that no bank guarantee for a sum of Rs.27,10,400/- was prepared prior to 22.7.2016 and, therefore, the ingredients of Sections 463 & 464 of the I.P.C are also prima facie made out inasmuch as the applicant is not disputing the fact that he has not produced any bank guarantee dated 29.3.2016 and, therefore, prima facie there are ingredients of the offence under Sections 420, 467, 468, 471 of the I.P.C The fact of the matter is that the applicant retained the so called original bank guarantee, which was procured by him on 22.7.2016 and it was returned by him to the Bank in original alongwith a specific request letter signed & furnished for closing of the bank guarantee. The aforesaid certificate of the Bank in itself is sufficient proof of the fact that the applicant had acted in a fraudulent manner and, therefore, the guidelines issued by the Supreme Court in the cases of State of Haryana and Ors. Vs. Ch. Bhajanlal & Ors. (AIR 1992 SC 604) and M/s Neeharika, Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others (2021 SCC Online SC 315) when taken into consideration, no case for quashing the First Information Report is made out.
The judgment referred to by the learned Senior Counsel for the applicant in the case of Hridaya Ranjan Prasad Verma & Others versus State of Bihar & Another (supra) is different on facts and in Paragraph No.14, the specific aspect has been discussed & clarified.
Similarly, the judgment referred to by the learned Senior Counsel for the applicant in the case of S.W.Palanitkar & Others versus State of Bihar & Another (supra) is also different on facts & is not applicable to 7 the facts of the present case.
The judgment referred to by learned Senior Counsel for the applicant in the case of Sheila Sebastian versus R.Jawaharaj & Another (supra) is distinguishable especially when the provisions as contained in Section 464 of the I.P.C are taken into consideration inasmuch as admittedly the bank guarantee dated 29.3.2016 was never issued by the Bank and the one, which was delivered to the authorities, was a false document, therefore, the applicant has failed to make out a case for quashing of the First Information Report keeping in view the fact that prima facie the ingredients of the offence under Sections 420, 467, 468, 471 of the Indian Penal Code, 1860 mentioned in the First Information Report pertaining to Crime No.273/2018 registered at Police Station Gandhi Nagar, District Bhopal are made out.
Accordingly, this petition fails & is dismissed.
(VIVEK AGARWAL) JUDGE amit