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2014 DIGILAW 220 (GAU)

DEBABRATA PHUKAN v. STATE OF ASSAM

2014-02-21

A.K.GOSWAMI

body2014
JUDGMENT AND ORDER (CAV) By this application under Section 482 of the Code of Criminal Procedure, 1973, for short, ‘the Code’, the petitioner prays for quashing of the order dated 10.8.2012, passed by the Additional Chief Judicial Magistrate, Lakhimpur, in G.R. Case No.183/2012, framing charge against him under Section 406/420 IPC and subsequent orders passed thereon including the proceeding itself, now pending in the court of learned Additional Chief Judicial Magistrate, Lakhimpur. 2. Heard Mr. M.Sarma, learned counsel for the petitioner. Heard also Mr. M. Choudhury, learned counsel for the opposite party No. 2. None appears for the State of Assam, arrayed as opposite party No.1. 3. The opposite party No.2, as an informant, filed an ejahar before the Officer-In-Charge, Narayanpur Police Station. The Ejahar reads as follows: “With due respect I would like to state that on 19.7.2010 the above named accused came to my house at around 10 A.M. and took an amount of Rs.11,00,000/- (Rupees Eleven Lakh) only due to his urgent financial need and entered into an agreement with a promise to return the amount after six months. Out of above, he returned Rs.4,00,000/- (Rupees Lakhs) only at my residence after around 3(three) months from the aforesaid date. The balance amount of Rs.7,00,000/- (Rupees Seven lakhs) only was not returned and when the accused was insisted upon, he abused with some offensive language with a threatening to cause physical injury to me and tried to misappropriate the amount. It is known that, besides me the accused has taken money from other persons with an inducement to give jobs to them. Therefore your Honour may be pleased to take appropriate actions by investigating the matter. Signature of the informant Sd/ Himeswar Bora” 4. On the basis of the said ejahar, Narayanpur Police Station Case No.18/2012 under Section 406/420 IPC was registered. 5. The statement of the opposite party No.2 was recorded under Section 161 of Cr.PC and his statement, recorded in vernacular and a translated copy thereof, are annexed as Annexure-E to the petition. Translated typed copy, though substantially correct, contains some errors in translation. In his Section 161 Cr.PC statement, the opposite party No.2 had stated that the petitioner had taken a loan amount of Rs. Translated typed copy, though substantially correct, contains some errors in translation. In his Section 161 Cr.PC statement, the opposite party No.2 had stated that the petitioner had taken a loan amount of Rs. 11 lakhs in the year 2009 from his residence (year written as 2007 in the translated copy) on the plea that the petitioner was in urgent need of money and he promised to refund the said amount within a period of six months. The petitioner had returned a sum of Rs. 4 lakhs within a period of three months and when the balance amount was asked for, the petitioner had issued two cheques of Rs. 3 lakhs each, dated 29.5.2010 and 11.6.2010. When he enquired with the North Lakhimpur Branch of SBI, he came to learn that the cheques were fake and the petitioner in his A/c No. 11015784124, had no money. Finding no alternative, he lodged a complaint against the petitioner before the Bihpuria Police Station. Acting on the said complaint, police personnel of Bihpuria Police Station called both of them to the police station on 29.7.2010 and the petitioner executed a document promising to pay the balance amount. Even thereafter, the petitioner did not return the amount. Coming to know that the petitioner was coming from Jorhat to his residence via Dhalpur Jamuguri Ghat, he took the assistance of the services of Dhalpur Police Station and the police personnel of Dhalpur Police Station took the petitioner into custody and produced him before Bihpuria Police Station. Bihpuriha Police Station had sent the petitioner to Narayanpur Police Station and accordingly, he lodged the ejahar. Police seized the two fake cheques in question, copy of the agreement evidencing receipt of loan and a document written in the hand of the petitioner acknowledging receipt of six lakhs from him. It is also stated that he had signed in the said seizure list. 6. A perusal of the aforesaid statement would go to show that even before the instant FIR came to be registered, the petitioner was illegally taken into custody. 7. Subsequently, charge-sheet dated 16.3.2012 was submitted under Section 406/420 IPC against the petitioner and by the order dated 10.8.2012, the learned Magistrate framed charge against the petitioner under Section 406/420 IPC. Thereafter, vide various orders, NBWA against the petitioner was issued for his absence without steps. 8. Mr. 7. Subsequently, charge-sheet dated 16.3.2012 was submitted under Section 406/420 IPC against the petitioner and by the order dated 10.8.2012, the learned Magistrate framed charge against the petitioner under Section 406/420 IPC. Thereafter, vide various orders, NBWA against the petitioner was issued for his absence without steps. 8. Mr. M. Sarma, learned counsel for the petitioner submits that the allegations made in the complaint petition are totally false and the petitioner has, in this petition, disclosed correct facts. He has also submitted that as in an application under Section 482 of the Code, the court will not examine the truthfulness or the falsity of the allegations, he will not elaborate in that aspect. He contends that on the basis of the allegations made in the ejahar and the statements made by the informant under section 161 Cr.PC, even if such statements are taken as true on face value in its entirety, no case is made out for framing of charge under Section 406/420 IPC. It is submitted by him that framing of charge-both under Sections 406/420 is also misconceived. If a person is accused of having committed an offence for criminal breach of trust, he cannot, on the same facts, be accused to have committed the offence of cheating, too, he submits. In support of his submissions, the learned counsel places reliance in the following judgments: (i) (2009) 3 SCC 78 (V.Y.Jose and another –vs- State of Gujarat and another); (ii) AIR 2009 SC 3191 (Dalip Kaur & ors –vs- Jagnar Singh and another ) and (iii) 2009 (4) GLT 741 (Mahindra and Mahindra Financial Services Ltd and another –vs-Delta Classic Pvt. Ltd). 9. Mr. M. Choudhury, learned counsel for the opposite party No. 2, submits that allegations made in the ejahar as well as in the 161 Cr.PC statements constitute the ingredients of Section 406/420 IPC and therefore, no interference is called for with the impugned order of framing of charge and there being no merit in this petition, the same is liable to be dismissed. 10. In Onkar Nath Mishra and ors. Vs. 10. In Onkar Nath Mishra and ors. Vs. State (NCT of Delhi), reported in (2008) 2 SCC 561 , the Supreme Court had observed that it is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. At this stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. 11. In V.Y. Jose (supra), the Apex Court in paragraphs 14 and 21 laid down as follows: “14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: (i)Deception of a person either by making a false or misleading representation or by other action or omission; (ii)Fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at that time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out.” “21. There exists a distinction between pure contractual dispute of a civil nature and an offence of cheating. There exists a distinction between pure contractual dispute of a civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.” 12. In Dalip Kaur (supra), the Apex Court laid down that an offence of cheating would be constituted when the accused had fraudulent or dishonest intention at the time of making promise or representation and that a pure and simple breach of contract does not constitute an offence of cheating. It was also held in paragraph 12 of the said judgment as follows: “12.The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code.{See Ajay Mitra v. State of M.P. (2003) 3 SCC 11 ]} 13. Thus, in order to sustain a plea of offence under section 420 IPC, the complaint must disclose that the accused had dishonest or fraudulent intention at the time the complainant had parted with the property or that the accused, by making a representation at or before the time the complainant had parted with property, deceived the complainant and thereby induced the complainant to deliver property and that the accused knew such representation to be false. Section 415 IPC mandates that there has to be dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Section 415 IPC mandates that there has to be dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. When allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of culpable intention at the time of making initial promise, no offence under section 420 IPC can be said to be made out. 14. In Mahindra and Mahindra (supra), this court had stated in paragraphs 12,14,15,16 and 17 as follows: “ 12…..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 persons can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.” 14. In “criminal breach of trust”, an accused comes into possession of a property or acquires dominion over a 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. 15. 15. 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; 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. 16. 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. 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. 17. In the light of the distinction, which exists between an offence of ‘criminal breach of trust’ and an offence of ‘cheating’, it becomes clear that if a person is accused of having committed an offence of ‘criminal breach of trust’, he cannot, on the same facts and in the same breath, be accused to have committed the offence of ‘cheating’ too. In the present case, the learned Magistrate has taken cognizance of offences under both penal provisions, namely, Section 420 and 409 IPC. Having taken cognizance of both the offences aforementioned, the learned Magistrate has accordingly directed issuance of processes. In the present case, the learned Magistrate has taken cognizance of offences under both penal provisions, namely, Section 420 and 409 IPC. Having taken cognizance of both the offences aforementioned, the learned Magistrate has accordingly directed issuance of processes. This reflects non-application of mind inasmuch as the accused must know as to whether he is summoned to defend himself against the accusation of ‘criminal breach of trust’ or ‘cheating’, for, he cannot be, in one and the same breath, be accused of having committed both the said offences.” 15. From the perusal of the allegations made in the FIR and the statements of the informant under section 161 of the Code it becomes manifest that allegations essentially disclose disputes of civil nature and the complainant has a remedy in the civil court and therefore the same should not be allowed to be subject matter of criminal offence. A purely civil dispute is sought to be given the colour of criminal offence and the antecedent facts leading to the filing of the ejahar in question suggest in unmistakable terms that resort to criminal proceeding was taken in order to wreck vengeance on the petitioner. The prosecution case is out and out a loan transaction and failure to pay the loan, without anything more, may create civil liability, but will not fasten the petitioner with criminal liability for the offence of cheating. Ingredients of section 406 are also in no way attracted to the facts alleged as there is no allegation of entrustment of any property by the informant to the petitioner. 16. In view of the discussions above, ingredients and pre-requisites of sections 406/420 IPC being totally absent and lacking, the learned trial Court committed manifest error of law in framing charge against the petitioner under sections 406/420 IPC and continuance of proceeding in G.R. Case No. 183/2012, pending in the Court of learned Additional Chief Judicial Magistrate, Lakhimpur, will be an abuse of the process of the law. 17. Accordingly, the revision petition is allowed. The impugned order dated 10.08.2012 passed by the learned Additional Chief Judicial Magistrate, Lakhimpur, in G.R. Case No. 183/2012 and the proceeding of G.R. Case No. 183/2012, pending in the Court of the Additional Chief Judicial Magistrate, Lakhimpur are quashed. No cost.