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Jharkhand High Court · body

2016 DIGILAW 27 (JHR)

Ambuj Narayan v. State of Jharkhand

2016-01-05

RAVI NATH VERMA

body2016
Order : Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short ‘the Code’), the petitioners have questioned the legality of the order dated 21.06.2004 passed by the learned Judicial Magistrate, Dhanbad whereby and whereunder the cognizance of the offence under Section 406/34 of the Indian Penal Code has been taken and direction has been given to issue summons to the petitioners and further prays for quashing of the entire criminal proceeding in connection with Complaint Case No. 258 of 2004. 2. The facts of the case, which is relevant for the proper appreciation of the issue involved in this case, in short, is that at the instance of complainant Mangal Kumar @ Minu Agarwal, the aforesaid case was instituted under Section 406 and 420/34 of I.P.C. on the allegation that the complainant had purchased a Whirlpool Washing Machine-XL worth Rs. 9,393/- on 04.10.2000 from the shop of an accused Mahesh Patel, who runs the shop under the name and style of Patel & Sons at Chiragora, Dhanbad and at the time of purchase, the present petitioners, who were the Company‘s employees, had assured to give good services to customers. There was seven years warranty period and on behalf the company, assurance was given to cover all risk of repair and maintenance during that period but in the month of April 2003, when the said washing machine developed some technical fault and became unworkable, the complainant made request to the petitioner no.2 – Md. Riaj to repair the machine but as there was some major defect, he took away the washing machine for repairing in the workshop. It is alleged in the complaint petition that even after lapse of several days, the machine was not returned to him and on enquiry, nobody was giving correct information about the washing machine. Thereafter, the complainant contacted the accused no.-1 of the complaint case the Managing Director of Whirlpool India Ltd., New Delhi, who advised him to contact the petitioner no.1. On 18th February, 2004, when the complainant met with petitioner no.1 at Company‘s repair Centre at Matkuria and wanted to know about the washing machine, no satisfactory reply was given by the petitioner no.1, whereafter this complaint was lodged. 3. On 18th February, 2004, when the complainant met with petitioner no.1 at Company‘s repair Centre at Matkuria and wanted to know about the washing machine, no satisfactory reply was given by the petitioner no.1, whereafter this complaint was lodged. 3. It appears from the record that after recording of the statement of the complainant on solemn affirmation, other witnesses were examined and thereafter, the court below finding sufficient materials and prima facie case took cognizance of the offence under Section 406/34 I.P.C. by order dated 21.06.2004 and directed to issue summons to the petitioners. Being aggrieved by the said order of taking cognizance, the petitioners preferred this criminal miscellaneous petition. 4. Mr. Mazumdar learned senior counsel appearing for the petitioners assailing the order taking cognizance as bad in law and perverse and without application of judicial mind seriously contended that even if the allegations made in the complaint petition at their face value are taken to be correct, they do not constitute any offence. It was also submitted that even it be considered that there was some defect in the washing machine, it would still not amount to any offence as none of the ingredients responsible to constitute the offence under Section 406 I.P.C. is available and there was no criminal breach of trust or any dishonest intention on the part of the petitioners. It was further submitted that there is no criminal breach of trust rather it involves a civil wrong in respect of which the complainant may seek his redressal or remedies in a civil court the whole prosecution against these two petitioners are vitiated in law liable to be quashed. 5. In order to substantiate his submission, learned senior counsel relied on the judgments: (2013) 11 SCC 673 ; Paramjeet Batra Vs. State of Uttrakhand & others and another judgment Shri A.I. Rebelo Vs. State of Bihar; 2008(2) JLJR 68 and submitted that the alleged defect developed almost after three years of purchase of the washing machine so the allegation of dishonest intention or the breach of trust at the very inception of the transaction, which is a prerequisite condition, are totally absent in the facts of the present case. 6. State of Bihar; 2008(2) JLJR 68 and submitted that the alleged defect developed almost after three years of purchase of the washing machine so the allegation of dishonest intention or the breach of trust at the very inception of the transaction, which is a prerequisite condition, are totally absent in the facts of the present case. 6. Refuting the above submissions, the learned counsel representing the State submitted that the court below after examining the allegations and evidences available on record took cognizance of the offence and there is no scope for interference at this initial stage as in the settled view, the power under Section 482 of the Code has to be used sparingly and only for the purpose of preventing abuses of process of any court. 7. Before I enter into the veils of submissions of the learned counsels, a reference of the case of Indian Oil Corporation Vs. NEPC India Limited reported in AIR 2006 S.C. 2780 is necessary wherein the Hon‘ble Supreme Court has held that a growing tendency in business circles to convert purely civil disputes into criminal cases is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. The Court has, therefore, held that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In another case State of A.P. Vs. Golconda Lingaswami and another; (2004) 6 SCC 522 , the Hon‘ble Supreme Court while considering the same issue held that if the allegations set out in the complaint do not constitute, the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent power under Section 482 of the Code and further held that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising the jurisdiction and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. 8. I have carefully considered and examined the submissions of the learned counsels and the decisions relied upon by the learned senior counsel appearing for the petitioners. It is well settled that judicious process is not an instrument of oppression or needless harassment and that summoning of an accused in a criminal case is a serious matter. The order taking cognizance and summoning of accused by the court must reflect that the court has applied his judicial mind to the facts of the case and law applicable thereto. Before examining the allegations and the evidences in the light of the settled view, a reference of Sections 405 and 406 of IPC is necessary for the proper appreciation of the issue involved in this case, which are as follows:- “Section 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 willfully suffers any other person so to do, commits ‘criminal breach of trust‘.” “Section 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.” From bare perusal of the aforesaid provisions, it would be clear that an offence of criminal breach of trust consists of four positive acts namely misappropriation, conversion, user and disposal of property. The essential ingredients of the offence of criminal breach of trust are (i) the accused must have been entrusted with property or dominion over it and (ii) the accused must have misappropriated the property or disposed of that property in violation of such trust. The essential ingredients of the offence of criminal breach of trust are (i) the accused must have been entrusted with property or dominion over it and (ii) the accused must have misappropriated the property or disposed of that property in violation of such trust. In the instant case, though there is an entrustment of the property but there is not at all or any whisper about misappropriation of the said property or disposal of that property in violation of such trust in the complaint petition. 9. I have carefully scrutinized the entire allegation made in the complaint petition, the statement of the witnesses examined during investigation under Section 202 of the Code and the statement of the complainant on solemn affirmation and on careful scrutiny of the same, I find that none of the ingredients responsible to constitute the offence alleged for which cognizance has been taken is available in the instant case rather I find that the dispute between the parties is predominantly of a civil nature. Apparently, the complainant has made an attempt to convert a civil dispute into a criminal case. There may be some truth in the allegations of the complainant but from that fact alone, it cannot be inferred that the manufacturer or the present petitioner no.1- Branch Manager of Whirlpool Indian Limited posted at Patna and the petitioner no.2, who is a technician in the Whirlpool Repairing Center, had any dishonest intention from the very inception or had any intention to misappropriate the machine in question and even if the complainant had any grievance, the same can be redressed or agitated before the proper forum even if there was any deficiency in services. 10. In view of the discussions made above, I have no hesitation in holding that the summoning of the petitioners and taking cognizance of the offence under Section 406/34 of I.P.C. was totally an abuse of process of the court. 11. Accordingly, this Criminal Miscellaneous Petition is, hereby, allowed and the order taking cognizance dated 21.06.2004 and the entire criminal proceeding in connection with Complaint Case No. 258 of 2004 are, hereby, quashed.