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2017 DIGILAW 875 (ORI)

Gokul alias Gokul Chand Poddar v. State of Orissa

2017-08-11

S.PANDA

body2017
ORDER 11.08.2017 Heard learned Counsel for the petitioner and learned Counsel for opposite party No.2. 2. This application under Section 482 of Cr.P.C. has been filed by the petitioner challenging the order dated 26.02.2007 passed by the learned S.D.J.M., Bolangir in G.R. Case No.447 of 2003 rejecting an application filed under Section 239 of Cr.P.C. to discharge the petitioner from the charges levelled against him. The leaned Addl. Sessions Judge, Bolangir in Criminal Revision No.13/3 of 2007-09 by order dated 03.03.2010 has confirmed the same. 3. Learned Counsel for the petitioner submitted that the transaction between the petitioner and the complainant was share business. There was no inducement or deception to deliver any property and the dispute, if any is purely civil in nature. The petitioner being a Partner cannot be said to have committed criminal breach of trust of his own business, as such it is a case of civil liability only. In support of his submission he has relied on the decisions reported in AIR 2009 SC 3191 and (2009) 43 OCR (SC) 680. Hence the impugned orders are not sustainable in the eye of law and the same need be interfered with. 4. Learned Counsel for opposite party No.2 however supported the impugned orders and submitted that the Courts below have rightly passed the same. He further submitted that this being a proceeding against the confirming revisional Court’s order, the impugned orders need not be interfered with. 5. The factual matrix of the case are as follows :- Opposite party No.2 has filed a complaint case in the Court of the learned S.D.J.M., Bolangir, which was registered as I.C.C. No.37 of 2007. In the complaint it was specifically alleged that the complainant was dealing with sales and purchases of shares of different Companies through the petitioner. The said transaction continues on Partnership basis for years. The complainant also sales shares of different Companies by placing order over telephone through the petitioner for which the petitioner issues computerised confirmation note to the complainant. While the transaction was going on between them, on 06.05.2000, it is alleged that the petitioner sent a letter to the complainant stating that he has started online share trading business in the name of “M/s. Samleswari Shares & Securities’. While the transaction was going on between them, on 06.05.2000, it is alleged that the petitioner sent a letter to the complainant stating that he has started online share trading business in the name of “M/s. Samleswari Shares & Securities’. He impressed upon the complainant that he is the owner of the firm even though he was not the sole owner of the above new business firm and by giving that impression he has cheated the complainant. 6. The learned Magistrate directed for investigation of the complaint under Section 156 (3) of Cr. P.C. It appears that the complaint was verified on 07.05.2003 and the First Information Report was registered at Bolangir Town P.S. Case No.214 of 2003. Subsequently the same was registered as G.R. Case No.447 of 2003. After completion of investigation the police submitted charge sheet for commission of offences under Sections 420/406/506 of I.P.C. The learned Magistrate has also taken cognizance of the said offence. 7. After cognizance was taken, the petitioner filed an application under Section 239 of Cr.P.C. before the Court below to discharge him from the charges levelled against him as no case for cheating is made out. The learned Magistrate by order dated 26.02.2007 rejected the application with a finding that there is sufficient materials available in the case record to proceed against the petitioner and the application has been filed only with an intention to delay the proceeding. Being aggrieved the petitioner preferred Criminal Revision No.13/3 of 2007-09 before the learned Addl. Sessions Judge, Bolangir. The Revisional Court confirmed the order of the Court below. 8. The facts narrated in the complaint prima facie reveals that the complainant was aggrieved as the petitioner has started a new online share trading business in the name of “M/s. Samleswari Shares & Securities”. On a plain reading of the complaint as well as the statements of the witnesses recorded under Section 161 of Cr.P.C., it clearly reveals that the dispute between the parties is civil in nature. If the averments made in the complaint petition are accepted on the face value the allegations contained therein do not constitute commission of offences either cheating or misappropriation. If the averments made in the complaint petition are accepted on the face value the allegations contained therein do not constitute commission of offences either cheating or misappropriation. On a close scrutiny of the materials on record, it is found that there was no allegation that from the very inception of the arrangement between the parties for sale of shares there was dishonest intention on the part of the petitioner rather the complainant has specifically averred that the arrangement was going on smoothly. While matter stood thus the petitioner has declared that he has opened a company for online share trading business. The complaint petition almost looks like a Civil Suit for recovery of money and direction to police to investigate into the matter is not proper. The complainant was silent about any dishonest intention on the part of the petitioner from the very inception of the contractual obligation between the parties. Existence of the dishonest intention is one of the essential ingredients of offence of cheating punishable under Section 420 of I.P.C. as well as misappropriation punishable under Section 406 of I.P.C. The learned Magistrate as well as the Revisional Court have not applied their judicial mind to the above materials available on record. The Revisional Court without giving any finding regarding the alleged transactions as alleged by the complainant and also without going through the statements available on records, confirmed the order of taking cognizance mechanically. 9. The Apex Court in the case of Dalip Kaur & Ors. v. Jagnar Singh & Anr. reported in AIR 2009 SC 3191 held that criminal breach of trust or cheating – fraudulent or dishonest intention at the time of making promise or representation – is necessary to constitute offence. Pure and simple breach of contract of sale does not constitute offence of criminal breach of trust or cheating. v. Jagnar Singh & Anr. reported in AIR 2009 SC 3191 held that criminal breach of trust or cheating – fraudulent or dishonest intention at the time of making promise or representation – is necessary to constitute offence. Pure and simple breach of contract of sale does not constitute offence of criminal breach of trust or cheating. The Apex Court has taken note of Sections 405 and 415 of I.P.C. in the aforesaid decision and has defined the criminal breach of trust and cheating 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 of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 415. Cheating-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived 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.”. An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating. 11. The ingredients of Section 420 of the Indian Penal Code are “ “(i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) 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”. 12. The High Court, therefore, should have posed a question as to whether any act or 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. 12. The High Court, therefore, should have posed a question as to whether any act or 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 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. There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Jank C. Mehta & Ors. ( 2009 (1) SCC 516 ) is attracted, which are as under. (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civill dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” Yet again, in Hira Lal & Ors. v. State of U.P. & Ors. (2009 (5) SCALE 418), this Court held. “10. The parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 of the Code are well known. v. State of U.P. & Ors. (2009 (5) SCALE 418), this Court held. “10. The parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 of the Code are well known. One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide.” 10. Similarly the Apex Court in the case of Devendra & Ors., Vs. State of U.P. & Anr. reported in (2009) 43 OCR (SC) 680 held that if the dispute is civil in nature and the ingredients of alleged offences are not made out, continuance of the proceeding will be abuse of process of Court. There cannot be breach of trust against a Partner in respect of Partnership property. 11. So far as the contention raised by learned Counsel appearing for opposite party not to exercise the jurisdiction under Section 482 of Cr.P.C. against a confirming order passed by the revisional Court is concerned, the Apex Court as well as this Court in catena of decisions settled the said position. The Apex Court in the case of G. Sagar Suri and another Vs. State of U.P. and others reported in AIR 2000 SC 754 held that – “It cannot be said that on filling of any application for discharge, by accused persons before Magistrate, High Court cannot exercise its jurisdiction under Section 482. Jurisdiction under Section 482 has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially, it is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. Supreme Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. Supreme Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 12. It is well settled that law does not remain in stagnation and is inherently imbibed with the lively spirit of life, the progressive spirit of law brings in new expositions having roots in the past. In the case of Ganesh Narayan Hedge V. S. Bangarappa and others reported in (1995) 4 SCC 41 the Apex Court while dealing with the provisions of Sections 482, 397 and 399 of the Code of Criminal Procedure held that : “While it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers xx xx. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges.....” 13. The Apex Court in the case of Madhu Limaye Vs. The State of Maharashtra reported in (1978) 1 SCR 749 held that the bar under Section 397 (2) can limit or affect the exercise of the inherent power under Section 482 of the Code of Criminal Procedure while dealing with the concept of an interlocutory order. It was also held in the said decision that the bar provided under sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in relation to interlocutory order. It was also held in the said decision that the bar provided under sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in relation to interlocutory order. Then in accordance with one or the other principle enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will exercise its inherent jurisdiction power. But in case the impugned order clearly brings about a circumstance which is an abuse of the process of the Code for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power of the High Court. But such cases would be viewed and far between. The High Court must exercise the inherent power sparingly. The said view was also reiterated by the Apex Court in the case of Raj Kapoor & others Vs. State & Others reported in (1980) 1 SCC 43 . 14. In view of the aforesaid settled position of law, as the dispute between the parties is civil in nature and continuance of the proceeding will be an abuse of process of Court, in the interest of justice, the impugned orders are set aside and the proceeding in G.R. Case No.447 of 2003 of the Court of learned S.D.J.M., Bolangir is quashed. The CRLMC is accordingly disposed of. CRLMC disposed of.