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2018 DIGILAW 525 (ALL)

PAWAN KUMAR JAIN v. STATE OF Uttar Pradesh

2018-02-28

SAUMITRA DAYAL SINGH

body2018
JUDGMENT Hon’ble Saumitra Dayal Singh, J.—Heard Sri Swapnil Kumar, learned counsel for the applicant, Sri S.N.Singh, learned counsel for the opposite party No. 2 and learned A.G.A. for the State as also perused the record. The present application under Section 482 Cr.P.C. arises from the First Information Report dated 1.9.2017 in Case Crime No. 949 of 2017, under Sections 420 and 406 I.P.C., Police Station Nai Mandi, District Muzaffar Nagar (instituted in pursuance of the order passed on application filed under Section 156(3) Cr.P.C.), being Criminal Case No. 4811/9 of 2017 (State of Uttar Pradesh v. Pawan Kumar), pending in the Additional Chief Judicial Magistrate, Court No. 1, Muzaffar Nagar. 2. According to the F.I.R. version, the opposite party No. 2 had a pre-existing social relationship with the applicant, who was engaged in trading in ‘Gur’ in the name and style M/s Om Prakash & Ajay Kumar, at Kukda Mandi, Muzaffar Nagar. Further, the applicant approached the opposite party No. 2 in March, 1996 to borrow Rs. 2,00,000/- with a promise to return such money within a period of one month, failing which he agreed to pay interest @ 18%, compounded at monthly rests. The opposite party No. 2 also disclosed having believed and acted on the representation so made by the applicant. He thus lent a sum of Rs. 2,00,000/- through two cheque drawn on the bank account of his wife, for Rs. 1,00,000/- each. Those were cleared and the amount credited in favour of the applicant on 15.3.1996. Thereafter, it has been alleged, the opposite party No. 2 repeatedly asked for return of the aforesaid money. It was never returned; the applicant thereafter left Muzaffar Nagar and started residing at Ghaziabad which address was not known to the opposite party; upon some efforts, the opposite party No. 2 learnt of the mobile number used by the applicant; he contacted the applicant on that number when the latter promised to return the money to the opposite party No. 2 but that he continued to dilly-dally, on one pretext or the other. Though the money was never returned by the applicant, on the application filed under Section 156 (3) Cr.P.C., the aforesaid FIR was registered under Sections 420 and 406 I.P.C. It was also disclosed in that F.I.R. that the applicant had refused to return the money and in fact he issued a notice to the opposite party No. 2 making false allegation therein. 3. While a counter version of the events has been offered in the affidavit in support of the application, however, the same is not required to be gone into at present, these being proceedings under Section 482 Cr.P.C., wherein the test as laid down by the Supreme Court in State of Haryana v. Bhajan Lal, 1992 (Supp) 1 SCC 335 (paragraph 101) has to be applied. 4. At the outset, learned counsel for the applicant submits that the FIR and consequently the charge-sheet submitted would fail the test as laid down by the Supreme Court in paragraphs 101 (1) 101(3) of the judgment in the case of State of Haryana v. Bhajan Lal (supra) that reads as below: “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 or 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 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 channelized and inflexible guidelines or 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 entirety do not prima facie constitute any offence or make out a case against the accused. (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 entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations 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 the 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 allegations 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. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a 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 on the accused and with a view to spite him due to private and personal grudge.” 5. Shri. Swapnil Kumar, learned counsel for the applicant submits - necessary ingredients of offence under Section 420 I.P.C., (in view of Section 415 I.P.C.), of ‘inducement’, by practicing deception or; fraud or; dishonest means, at the time when the property (in respect of which the offence of cheating is alleged), was handed over to the accused, are completely lacking inasmuch as no allegation exists, either in the FIR or in the statements recorded during investigation, of only deception, fraud or dishonesty practiced by the applicant to borrow Rs. 2,00,000/- from the opposite party. He has relied upon a decision of the Supreme Court in Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 , wherein it was held as below: “Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.” (emphasis supplied) 6. Sri S.N. Singh, learned counsel for the opposite party No. 2 has, on the other hand relied on the conduct of the applicant subsequent to March, 1996 to submit that the applicant had cheated the opposite party. Clearly, from a plain reading of the FIR and the statements recorded during the course of the investigation and other material existing on record, the necessary ingredients of offence under Sections 420 read with Section 415 I.P.C. are not made out on the relevant date, i.e. March 1996. Neither, the allegation of deception practiced by the applicant nor that of fraudulent or dishonest inducement made by him is alleged at the time when the opposite party No. 2 lent the money to the applicant. The subsequent conduct of the applicant as alleged, is not relevant to establish the intention of the parties on the date of money being lent to the applicant. 7. On the contrary, it had been disclosed in the F.I.R. that the opposite party No. 2 had a pre-existing social relationship with the applicant; he was aware that the applicant was engaged in trading in ‘Gur’ and; applicant asked for money of his business on which he also offered to pay interest @ 18%, compounded at monthly rests. 8. As to the offence alleged under Section 406 I.P.C. - of criminal breach of trust, learned counsel for the applicant submits, for that offence to arise there had, first to be ‘entrustment’ with the property and; thereafter arise dishonest misappropriation etc. of that property. According to him, in this case, the allegation of ‘entrustment’ does not arise from a plain reading of the FIR and the statements recorded during the course of the investigation and other material existing on record. 9. of that property. According to him, in this case, the allegation of ‘entrustment’ does not arise from a plain reading of the FIR and the statements recorded during the course of the investigation and other material existing on record. 9. He has relied on a decision of a division bench of this Court in State v. Tirath Das, AIR 1954 All 583 , wherein it has been held - in case of loans or advances there would not arise ‘entrustment’ to constitute an offence of criminal breach of trust, under Section 406 read with 405 IPC. It was held: “10. In the present case .............This handing over of the money may be termed as a deposit or may be termed as an advance. It is however, clear that it was not to be returned in specie, and the depositee was entitled to use the amount in his own business, but was bound to return the equivalent amount according to the directions of the complainant. 11. Section 405, Penal Code .......................Thus the section does not cover the case of a loan or of an advance of money when the borrower or the depositee intends to use or utilize that money, for the time being, till he is in possession of it, although he may have to return an equivalent amount later on to the person making the advance with or without interest, or compensation for the use thereof.” (emphasis supplied) 10. Sri S.N. Singh, learned counsel for the opposite party No. 2 has, on the other hand emphasized on the subsequent conduct of the applicant to establish that the applicant misappropriated the money. It is undisputed that the applicant had borrowed Rs. 2,00,000/- from opposite party No. 2 in the month of March, 1996 on that representation made by the applicant. Admittedly, the applicant offered to pay interest in the event of his failure to return the money within a period of one month. Thus there can be no denial that the money was advanced to the applicant by way of a loan or advance or deposit. The exact nature/description of that transaction is not relevant insofar as it is admitted to the opposite party No. 2 that the applicant had approached him to borrow a specific amount on which he also agreed to pay interest and the money was lent upon that representation made by the applicant. The exact nature/description of that transaction is not relevant insofar as it is admitted to the opposite party No. 2 that the applicant had approached him to borrow a specific amount on which he also agreed to pay interest and the money was lent upon that representation made by the applicant. Thus, clearly, the money had been lent for utilization by the applicant, probably for a business need, upon a promise to pay interest. Thus, the property lent was not to be returned in specie. Apparently, according to the F.I.R. version the applicant was entitled to use it according to his own volition with a stipulation to return an equivalent amount within one month or an equivalent amount together with agreed interest, if that amount was returned after one month. In view of the above, applying the test laid down by this Court in the case of State v. Teerath Das (supra), there was no ‘entrustment’ of any property in favour of the applicant, by the opposite party No. 2. 11. The subsequent conduct of the applicant, in my opinion, is not sufficient to make out commission of an offence under Section 405 IPC inasmuch as the first ingredient of Section 405 I.P.C. as to ‘entrustment’ is not made out upon a plain reading of the F.I.R. and the statement and material on record. 12. Then great reliance has been placed by learned counsel for the opposite party, on three other judgments in Rajesh Bajaj v. State of NCT of Delhi and others, (1999) 3 SCC 259 ; Lalmuni Devi v. State of Bihar, AIR 1999 SC 1216 ; and Vishnu Agarwal v. State of Uttar Pradesh, AWC 1997(1) 293, to submit that the present application deserves to be dismissed. 13. However, as noted above, since there is no allegation either of inducement, either by deception or fraud or dishonesty, no offence under Section 420 I.P.C. is made out. Also, for the reason of absence of allegation of entrustment, no allegation of offence under Section 406 I.P.C. is made out. The prosecution case, therefore, must fail on the test laid down in the case of State of Haryana v. Bhajan Lal (supra) vide paragraph 101 (1) read with paragraph 101 (3) of that judgment. Consequently, the application under Section 482 Cr.P.C. succeeds and is allowed. The prosecution case, therefore, must fail on the test laid down in the case of State of Haryana v. Bhajan Lal (supra) vide paragraph 101 (1) read with paragraph 101 (3) of that judgment. Consequently, the application under Section 482 Cr.P.C. succeeds and is allowed. The proceeding of Criminal Case No. 4811/9 of 2017 (State of Uttar Pradesh v. Pawan Kumar) arising out of Case Crime No. 949 of 2017, under Sections 420 and 406 IPC, pending in the Court of Additional Chief Judicial Magistrate, Court No. 1, Muzaffar Nagar is quashed.