Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 997 (JHR)

Ravi Todi v. State of Jharkhand

2015-08-20

PRASHANT KUMAR

body2015
Judgment Prashant Kumar, J. This writ application has been filed for quashing the entire criminal proceeding in connection with Complaint Case No. C1 1092/2014, including the order dated 28.06.2014 passed by learned Judicial Magistrate, Jamshedpur in the above complaint case, whereby and where under, he took cognizance of the offences under sections 406 and 420 of the Indian Penal Code. Petitioner further prayed for quashing the order dated 09.09.2014 by which bailable warrant of arrest issued against him. 2. It appears that the complainant-respondent No.2 is an advocate and he was engaged by the petitioner's company for defending a case (G.R. no. 784/2004) pending in the Giridih Court. It is further stated that complainant rendered his services from 20.08.2007 to 09.12.2009. Thereafter, he submitted a bill of Rs. 2,47,500/-. It is submitted that out of the aforesaid bill amount, a sum of Rs. 82,500/- has been paid to the complainant vide Cheque no. 046249 dated 07.02.2013. It is alleged that petitioner is not paying rest of the amount, even on repeated demand. Thus, the complainant alleged that petitioner misappropriated rest of the amount. Therefore, present complaint case filed alleging there in that petitioner has committed offence under sections 406 and 420 of the Indian Penal Code. 3. It further appears that the learned Judicial Magistrate, Jamshedpur recorded the statement of the complainant on SA and all other witnesses under section 202 of the Cr.P.C. After considering the aforesaid statements, the learned Magistrate came to the conclusion that prima facie offence under sections 406 and 420 of the Indian Penal Code made out against the petitioner. Accordingly, he issued summons against the petitioner vide order dated 28.06.2014. It further appears that when the petitioner did not appear before the court in compliance of aforesaid summon, learned Judicial Magistrate vide order dated 09.09.2014 issued bailable warrant of arrest against him. Against the aforesaid orders, present writ application filed. 4. It is submitted by Mr. Srijit Choudhary, learned counsel for the petitioner that the dispute relating to non-payment of advocate fees is purely a civil dispute, for which a civil suit is maintainable. He further submitted that from the materials available on the record i.e. complaint petition, statement of complainant on SA and the statements of witnesses recorded by the Magistrate during the inquiry under section 202 of the Cr.P.C, no offence made out against the petitioner. He further submitted that from the materials available on the record i.e. complaint petition, statement of complainant on SA and the statements of witnesses recorded by the Magistrate during the inquiry under section 202 of the Cr.P.C, no offence made out against the petitioner. It is further submitted that from perusal of Annexure-2, it is clear that respondent no.2 had submitted a bill of Rs. 82,500/- for the period from 20.08.2007 to 09.12.2009 and admittedly, the same has already been paid to the complainant-respondent no.2. It is then submitted that by legal notice, respondent no.2 submitted details of his expenses to the tune of Rs. 2,47,500/-. In support of the same, no document attached with the legal notice. Thus, the said claim is not acceptable. Under the said circumstances, continuation of present criminal proceeding is an abuse of the process of court, therefore, liable to be quashed. 5. On the other hand, Sri, N.K. Prasad, learned counsel appearing for the respondent no.2 submitted that a given set of facts may make out a civil wrong as also a criminal offence. Therefore, both the proceedings can run simultaneously. He further submitted that admittedly, respondent no.2 rendered his legal services in favour of the petitioner on the inducement that all the fees and expenses incurred by him will be paid. But the petitioner refused to pay above amount and mis-appropriated the same. Sri Prasad then submitted that there is deemed entrustment of the fee amount and, therefore, non-payment and mis-appropriation of the said amount is a breach of entrustment. Accordingly, he submitted that petitioner has committed offence under sections 406 and 420 of the Indian Penal Code, thus, the learned court below rightly took cognizance of the offences against the petitioner. 6. Having heard the submissions, I have gone through the records of the case. 7. Admittedly, the dispute between both the parties relates to advocate fees. It is also an admitted position that petitioner had paid Rs. 82,500/- to respondent no.2 vide Cheque no. 046249 dated 07.02.2013. It appears from Annexure-2 that respondent no.2 had submitted a bill of Rs. 82,500/- on 07.01.2013 for the period 20.08.2007 to 09.12.2009. The said amount has already been paid to the petitioner through cheque on the same day. Later on, a legal notice sent to the petitioner wherein, respondent no.2 had stated that he had submitted his bill for Rs. 2,47,500/- on 07.01.2013. 82,500/- on 07.01.2013 for the period 20.08.2007 to 09.12.2009. The said amount has already been paid to the petitioner through cheque on the same day. Later on, a legal notice sent to the petitioner wherein, respondent no.2 had stated that he had submitted his bill for Rs. 2,47,500/- on 07.01.2013. From perusal of Annexure-2, it appears that in the back side of the bill dated 07.01.2013, some details given in three heads :- (i) Advocate Fee, (ii) Transportation and (iii) Hotel Expenses. But the said details had not been signed by respondent no.2 nor in the first page of Annexure-2, respondent no. 2 has stated that he spent any amount towards transportation or hotel expenses. 8. From perusal of complaint petition, I find that there is no allegation that petitioner induced or requested the respondent no.2 for spending transportation and hotel charges from his own pocket. The complaint had not stated in his statement on SA that he spent any amount on account of transportation and hotel charges. In support of such a huge expenditure i.e. Rs. 99,000/- and Rs. 66,000/- respondent no.2 had not enclosed any document with the complaint petition. 9. Section 405 of the Indian Penal Code defines criminal breach of trust, which runs 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 or such trust, or wilfully suffers any other person so to do commits "criminal breach of trust." 10. Section 415 of the Indian Penal Code deals with the Cheating, which runs as follows :- "415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceive 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". 11. From perusal of Section 405 of the Indian Penal Code, it is clear that for making out a case of criminal breach of trust, firstly it is necessary for the complainant to prove that there is an entrustment of the property and, secondly, that the accused had mis-appropriated aforesaid property. Likewise in the case of cheating, the complainant must brought on record that accused induced him for delivery of property or to make alter or destroy any valuable security or anything which is sealed or signed and is capable of converted into valuable security. 12. In the instant case, as noticed above, there is no averments in the complaint petition that respondent no.2 had entrusted any property or valuable thing in favour of petitioner. Likewise, there is nothing in the complaint petition or in the statement of complainant on SA that petitioner mis-appropriated any entrusted property. I further find that in the complaint petition, respondent no.2 had not stated that he spent any amount towards transportation and hotel charges on the inducement of the petitioner. The complainant had also not stated so in his statement on SA, nor any witnesses gave such statements. In that view of the matter, I find that ingredients of the offences, namely criminal breach of trust and cheating are missing in this case. 13. In a similar circumstances, where a complaint petition filed for non-payment of contractual dues, the Hon'ble Supreme Court in ''Binod Kumar and others Vs. State of Bihar and Another", reported in 2014(10) SCC 663 has held that no offence of criminal breach of trust and cheating made out against the accused and has quashed the entire proceeding. The fact of this case is squarely covered by the aforesaid judgment of the Hon'ble Supreme Court. 14. In the instant case also, non of the ingredients of the offences of criminal breach of trust and cheating are available, thus, I am of the view that no offence under sections 406 or 420 of the Indian Penal Code made out against the petitioner. 15. 14. In the instant case also, non of the ingredients of the offences of criminal breach of trust and cheating are available, thus, I am of the view that no offence under sections 406 or 420 of the Indian Penal Code made out against the petitioner. 15. In view of the discussions made above, I allow this writ application and quash entire criminal proceeding arising out of Complaint Case No.C1 1092/2014, including the order dated 28.06.2014 passed by learned Judicial Magistrate, Jamshedpur by which he took cognizance of the offences under sections 406 and 420 of the Indian Penal Code and also the order dated 09.09.2014 by which bailable warrant of arrest issued against the petitioner.