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2012 DIGILAW 1259 (GAU)

Riju Samanta v. State of Assam

2012-11-09

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By order, dated 01.12.2004, passed, in CR Case No. 3893C/04, which stands impugned in this revision, the learned Judicial Magistrate, Kamrup, Guwahati, having taken cognizance of offences under Sections 406 and 420 read with Section 34 IPC, has directed issuance of process against, amongst others, the present petitioner as an accused. I have heard Mr. A.K. Bhuyan, learned counsel, for the petitioner, and Mr. Z. Kamar, learned Public Prosecutor, Assam, for the opposite party No. 1. I have also heard Mr. A.M. Bora, learned counsel, as amicus curiae. None has appeared on behalf of the remaining opposite party. 2. Before entering into the contents of the complaint and determine the question as to whether the complaint discloses commission of any offence, more particularly, under Sections 420 and 406 IPC, as against the present accused-petitioner, it is imperative to note that the accused No. 1, namely, Broadway Foods Ltd., is, admittedly, a company, which stands registered under the Companies Act, 1956, with accused No. 2 being its Chief Manager and accused No. 3 being its Managing Director. As far as the present petitioner is concerned, he was, at the relevant point of time, Regional Manager, North-Eastern Region, of the said company. 3. The case of the complainant, as discernible from the complaint, the materials submitted therewith and the complainant's statement, may, in brief, be described as under: (i) On 08.04.2004, accused No. 4, i.e., the present accused-petitioner, representing accused No. 1, 2 and 3, approached the complainant with mala fide intention to induce the complainant to become the Consigning & Forwarding (in short, C & F) agent of accused No. 1. In this regard, accused No. 4 (i.e., the petitioner herein) promised to appoint the complainant as C & F agent of accused No. 4, for the entire North-Eastern Region, for a period of two years on depositing a sum of Rupees five lakhs as the security deposit and also promised to send stocks and products of accused No. 1 to the complainant on the complainant's appointment as C & F agent and continue maintaining uninterrupted flow of supply of its products in the market. Believing in the representations, so made by the accused-petitioner, the complainant deposited a sum of Rupees five lakhs by way of bank draft in the name of the accused No. 1, which is a company, at its Chandigarh branch. Believing in the representations, so made by the accused-petitioner, the complainant deposited a sum of Rupees five lakhs by way of bank draft in the name of the accused No. 1, which is a company, at its Chandigarh branch. On receiving the security deposit of Rupees five lakhs, though the accused-company appointed the complainant as their C & F agent for the entire North-Eastern Region and executed, in this regard, an agreement, on 20.04.2004, the accused No. 1 sent consignment on two occasions and, thereafter, no consignment of goods was sent by the accused-company to the complainant despite repeated demands placed by the complainant with the accused-company. The accused-company has, thus, not made requisite supply of consignments of their goods available with the complainant, and has also misappropriated the said sum of Rupees five lakhs by not refunding the said amount. Thus, the accused-persons, including the present petitioner, has, according to the complainant, committed offences under Sections 406/420/34 IPC. 4. Having examined the complainant and complainant's witnesses, under Section 200 IPC, the learned Magistrate, as indicated above, took cognizance of offences under Sections 406 and 420 read with Section 34 IPC and directed issuance of summons to all the accused named in the complaint including the present petitioner. 5. Aggrieved by the issuance of process to him, the accused-petitioner has come to this Court contending to the effect, inter alia, that the contents of the complaint and the other materials on record, available before the learned Court below, did not make out any case of commission of offence either under Section 420 and/or 406 IPC and, hence, in such circumstances, taking of cognizance, in the manner as has been done by the learned Court below and the direction to issue process to the accused named in the complaint including the present petitioner, is bad in law and, hence, the complaint, in question, be quashed to the extent that the same relates to the present petitioner and, in this regard, the petitioner also contends that he, having ceased to be an employee of the accused-company since 30.04.2004 and since he had been in the service of the accused-company from December, 2003, till the end of April, 2004, no process ought to have been directed to be issued against him either under Section 420 or 406 IPC. 6. 6. While considering the present revision, it needs to be noted that the law, with regard to quashing of criminal complaint, is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapoor Vs. State of Punjab ( AIR 1960 SC 866 ), wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out. Gajendragadkar, J, speaking for the Court, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R.P. Kapoor (Supra), it becomes abundantly clear that when a look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed. 7. As a corollary to what has been discussed above, it is also clear that if the contents of the complaint disclose commission of offence, such a complaint cannot be, ordinarily, quashed. 8. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in State of Haryana & Ors. Vs. Bhajanlal & Ors., reported in 1992 Supp (1) SCC 335, laid down as follows:- 102. 8. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in State of Haryana & Ors. Vs. Bhajanlal & Ors., reported in 1992 Supp (1) SCC 335, laid down as follows:- 102. 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 of 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 the 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 of 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 entirely, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR 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 evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegation in the FIR 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 FIR 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. (5) Where the allegations made in the FIR 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 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 concerned 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 of the accused and with a view to spite him due to private and personal private grudge. 9. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution on the powers of quashing of criminal proceedings in the following words:- 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. (Emphasis is added) 10. (Emphasis is added) 10. It is clear from a close reading of the principles laid down, in the case of R.P. Kapoor (supra) and Bhajanlal (supra), that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made, in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations, made in the FIR or complaint and evidence collected in support of the same, do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 11. In other words, when the allegations, made in an FIR, disclose commission of a cognizable offence, such an FIR cannot, ordinarily, be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the FIR or the probability of the defence plea can be determined only by effective investigation or at the trial. 12. However, in Harshendra Kumar D. Vs. Rebatilata Kiley & Ors., reported in (2011) 3 SCC 351 , the Supreme Court has made it clear that it is not an absolute rule of law that the High Court, while exercising its jurisdiction under Section 482 Cr.P.C., or, while exercising its revisional jurisdiction under Section 397 Cr.P.C., cannot, under any circumstances, look into the nature of public document or such materials, which are beyond suspicion or doubt, in order to ascertain if the criminal prosecution should or should not be allowed to proceed. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. The Supreme Court has, therefore, held, in Harshendra Kumar D. (supra), that the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of director of the company, which, if looked into, would have made it clear that the appellant's resignation from the post of director of the company was much before the cheques had been issued by the company. The relevant observations, which appear, in this regard, at paragraph 25 and 26, in Harshendra Kumar D. (supra), read as under: 25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused, which are in the nature of public documents or the materials which are beyond suspension or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspension or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 26. Criminal prosecution is a serious matter; it affects the liberty of a person. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company. 13. From the law laid down in Harshendra Kumar D. (supra), it becomes clear that when the High Court is approached for quashing of a criminal prosecution in exercise of its extra-ordinary jurisdiction under Section 482 Cr.P.C., or in exercise of its revisional jurisdiction under Section 397 Cr.P.C., the High Court has to bear in mind that criminal prosecution affects the liberty of a person and there can be no greater damage done to the reputation of a person than dragging him in a criminal case. There is, therefore, no absolute bar, on the High Court's power, to take into consideration any uncontroverted document, which may have come on record, for the purpose of arriving at a decision as to whether a criminal prosecution should or should not be allowed to continue and, if the Court, on the basis of any public or uncontroverted document, comes to the conclusion that allowing the criminal prosecution to proceed, in such a case, would amount to abuse of the process of the Court, the High Court has the duty to quash such a proceeding. 14. It is, no doubt, true that while exercising its inherent jurisdiction under Section 482 Cr.P.C., or its revisional jurisdiction, under Section 397 Cr.P.C., where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. Nonetheless, in appropriate cases, if, in the face of the documents placed by the accused, which are beyond suspicion or doubt, the accusations against the accused cannot stand, it would be perversity of justice if the accused is asked to face trial, for, if it is so done, it would amount to denial of justice and would be tantamount to preventing justice from being done. This would be nothing short of abuse of the process of the Court. 15. Coupled with the above, there is no doubt that an FIR or a complaint may be quashed if the same is found to be actuated by mala fide (See. Hira Lal & Ors. Vs. State of Uttar Pradesh, reported in (2009) 11 SCC 89 ) or make accusations, which are absurd or inherently improbable that no reasonable man would accept the allegations made in the FIR or the complaint, as the case may be, as true and/or in a case where the FIR and/or the complaint, as the case may be, is lodged as a counterblast (See. M.N. Ojha & Ors. Vs. Alok Kumar Srivastav & Ors., reported in (2009) 9 SCC 682 ). The FIR or a complaint may even be quashed when the same is used as a weapon of harassment or persecution (See. State of Karnataka Vs. L. Muniswamy, ( AIR 1977 SC 1489 ). 16. In the case at hand, it was the bounden duty of the learned Magistrate to determine whether the complaint and the materials on record, placed before him, disclosed commission of an offence under Section 402 or 406 IPC or commission of any other offence. 17. Before entering into the discussion as to whether the impugned order taking cognizance of offences aforementioned and directing issuance of processes against the accused-petitioners is sustainable in law or not, one needs to point out the principal distinction between 'criminal breach of trust' and 'cheating'. DISTINCTION BETWEEN CRIMINAL BREACH OF TRUST AND CHEATING 18. 17. Before entering into the discussion as to whether the impugned order taking cognizance of offences aforementioned and directing issuance of processes against the accused-petitioners is sustainable in law or not, one needs to point out the principal distinction between 'criminal breach of trust' and 'cheating'. DISTINCTION BETWEEN CRIMINAL BREACH OF TRUST AND CHEATING 18. In 'criminal breach of trust', the accused comes into possession of the property or acquires dominion over the property honestly and bona fide, but he develops dishonest intention subsequent to the taking possession of, or subsequent to having acquired the dominion over, the property and, having developed such dishonest intention, he dishonestly misappropriates or converts to his own use the property or dishonestly uses or disposes of the 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. 19. Thus, in 'criminal breach of trust', the intention of the accused cannot be dishonest or mala fide at the time, when he comes into possession of the property or comes to acquire dominion over the property; but, having come into possession of, or having acquired dominion over, the property, the accused develops dishonest intention and actuated by such mens rea, he converts to his own use the property or dishonestly uses or disposes of the 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. 20. Contrary to what happens in 'criminal breach of trust', the intention of the accused, in a case of 'cheating', is dishonest from the very commencement of the transaction. There is really no consent by the person, who is intentionally induced by deception to deliver the property or allow any person to retain the property or is intentionally induced, as a result of deception, to do or omit to do anything, which he would not do or omit to do 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. 21. In short, thus, while in 'criminal breach of trust', the accused comes into possession of the property without dishonest intention and develops dishonest intention subsequent to his coming into possession of the property, the offence of cheating is one, wherein the accused has dishonest intention from the very commencement of the transaction. 22. What logically follows from the above discussion is that if a person is accused to have committed an offence, under Section 406 IPC, in relation to a transaction, he cannot, in one and the same breath, be said to have committed the offence, under Section 420 IPC, in relation to the same transaction. 23. The impugned order, it is clear, suffers from serious lack of application of mind inasmuch as the learned Magistrate has, with the help of the impugned order, taken cognizance of offences under both penal provisions, namely, Section 420 as well as 406 IPC. 24. Coupled with the above, it is also worth pointing out that since it has not been disputed by the accused-company and its functionaries, who have been impleaded as accused No. 2 and 3 in the complaint, that the petitioner had ceased to be an employee of the accused-company by the end of April, 2004, let me, first, determine if cognizance, in the present case, could have been taken of the offence under Section 420 IPC as against the accused named in the complaint, more particularly, as against the present petitioner. In this regard, I may hasten to add that cognizance is taken of an offence and not of an accused. 25. In the case at hand, the complainant's allegation is that the present petitioner promised the complainant that the complainant would be appointed as C & F agent for the entire North-Eastern Region for a period of two years and that the complainant shall, for this purpose, deposit a sum of Rupees five lakhs. The complainant had accordingly deposited the said sum of Rupees five lakhs as already mentioned above and he was appointed as C & F agent. The representation, which the present petitioner had made to the complainant, cannot, therefore, be said to have suffered from any falsity or dishonesty nor can the representation, which the accused-petitioner had allegedly made, be described as fraudulent. There is not even a particle of material on record to show that the present petitioner had acted fraudulently and/or dishonestly. The representation, which the present petitioner had made to the complainant, cannot, therefore, be said to have suffered from any falsity or dishonesty nor can the representation, which the accused-petitioner had allegedly made, be described as fraudulent. There is not even a particle of material on record to show that the present petitioner had acted fraudulently and/or dishonestly. This inference gets reinforced from the fact that the complainant had received, even after the present petitioner ceased to be an employee of the accused-company, two consignments of goods and it was, thereafter, that the supply of consignments ceased. Viewed from this angle, it is wholly irrational to hold, even tentatively, that the present petitioner had approached the complainant with any dishonest or fraudulent intention in order to induce him to become a C & F agent of the accused-company and thereby suffer damage or harm in any form whatsoever. 26. What emerges from the above discussion is that the contents of the complaint and the materials on record did not disclose any case of commission of offence under Section 420 IPC and, hence, no process could have been issued against the accused named in the complaint, more particularly, the present petitioner, under Section 420 read with Section 34 IPC. 27. Turning to the question as to whether the complaint and the materials on record discloses commission of any offence under Section 406 read with Section 34 IPC, it needs to be pointed out that according to the complainant, he had deposited the requisite sum of Rupees five lakhs, as security deposit, with the accused company and this amount is still lying with the accused-company. For withholding repayment of this amount, no explanation, as the complaint and the materials on record discloses, has been offered by the accused-company. A prima facie case, therefore, of commission of criminal breach of trust is, indeed, made out against the accused company. However, so far as commission of offence, under Section 406 read with Section 34 IPC, is concerned, what cannot be ignored is that the money has been deposited with the accused-company and no part of the money is alleged to have been received by the accused-petitioner and, in fact, the accused-petitioner ceased to be an employee of the company as far back as on 30.04.2004. 28. 28. In the absence of any assertion, on the part of the complainant that the accused-petitioner has continued to remain in the service of the company even after the month of April, 2004, this Court has to proceed on the basis of the fact that the accused-petitioner did not remain an employee of the accused-company since after the month of April, 2004, and, in such circumstances, the accused-petitioner could not have been fastened with the liability of commission of offence of criminal breach of trust by taking the aid of Section 34 IPC. 29. What emerges from the above discussion is that while taking of cognizance of offence, under Section 420 read with Section 34 IPC, by the learned trial Court is wholly incorrect and illegal, the direction to issue process as against the accused-petitioner for the offence, under Section 406 IPC, by taking the aid of Section 34 IPC, is bad in law and cannot, in the facts and attending circumstances of the present case, be sustained. 30. In the result and for the reasons discussed above, this revision succeeds. The impugned order, dated 01.12.2004, is hereby set aside to the extent that the same relates to taking of cognizance of offence under Section 420 read with Section 34 IPC and issuance of process, as against the accused-petitioner, under Section 420 read with Section 34 IPC. The impugned order, dated 01.12.2004, is also hereby set aside to the extent that the same directs issuance of process, as against the accused-petitioner, for the offence allegedly committed by him under Section 406 read with Section 34 IPC. The complaint shall, therefore, proceed under Section 406 read with Section 34 IPC against accused No. 1 and its remaining functionaries, namely, accused No. 2 and 3, until directed otherwise. Send back the LCR.