Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 445 (GUJ)

Maheshbhai Ramnivas Bediya v. State Of Gujarat

2019-04-22

A.P.THAKER

body2019
ORDER : 1. The present application has been filed by the applicants under Section 482 of the Code of Criminal Procedure, 1973 (“Code” for short) seeking quashing and setting aside the impugned FIR bearing C.R.No.I04 of 2017 registered with D.C.B. (Crime) Police Station, Dist:Ahmedabad under Sections 420, 406 and 114 of the Indian Penal, 1860 (“IPC” for short). 2. It is contended by the applicants that there were business relations between the applicants and the respondent no.2original complainant. It is stated that the applicants had purchased goods i.e. grey clothes from the respondent no.2 worth Rs.17,67,273/vide bills mentioned in the FIR in the year2014. During the months from June2015 to August2015, the applicants have made payments of various amounts to the tune of Rs.4,20,000/to the respondent no.2 and due to some financial crisis in the market and non receipt of payments from the merchant to whom they had sold the goods, they could not make the payment to the respondent no.2 in time. The same does not disclose any malafide intention or manipulating act of misappropriation or detention of goods by them and hence, ingredients of offence, as narrated in the impugned FIR, are not duly satisfied from the FIR itself. 3. It is contended that the respondent no.2 has filed the alleged FIR on 04.01.2017 for nonpayment of the amount and no ingredient of offence under Sections 406 and 420 of the IPC is made out. 3.1 It is contended that they were arrested for the alleged offences and were enlarged on bail on 09.05.2017. It is stated that the present case is purely of civil in nature, and therefore, no criminal action can be initiated against them. It is also contended that the impugned FIR has been lodged with a view to harass the applicants, to achieve some personal goals and to exercise undue pressure on them. 3.2 It is contended that the applicant no.2 has never done any business with the respondent no.2 herein and has been falsely implicated in this case. It also contended that instead of exhausting civil remedy, the respondent no.2 has indirectly adopted a very shortcut of initiating criminal proceedings. 3.3 It is also contended that it is settled law that when there is dispute between the parties is purely of a civil nature, the criminal liability can never prevail over the civil law. It also contended that instead of exhausting civil remedy, the respondent no.2 has indirectly adopted a very shortcut of initiating criminal proceedings. 3.3 It is also contended that it is settled law that when there is dispute between the parties is purely of a civil nature, the criminal liability can never prevail over the civil law. 3.4 By narrating the ingredients of Sections 406 and 420 of the IPC, it is contended that the offence of criminal breach of trust (Section 406 of the IPC) and cheating (Section 420 of the IPC) have specifically ingredients and in order to constitute a criminal breach of trust, there must be a entrustment with person for property or dominion over the property, and the person entrusted has dishonestly misappropriated or converted the property to his own use or disposed of the same dishonestly or willfully suffers any other person so to do in its violation. It is contended that in present case, no any property was entrusted to the present applicants and have not misappropriated or converted the same into their own use and the applicants had no dominion over it and hence, ingredients of either cheating or criminal breach of trust are not at all satisfied and considering the same, the FIR in question required to be quashed. 3.5 By relying upon many decisions of the Apex Court, it is also contended that ever act of breach of trust may not be resulted in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust which involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts, but any breach of trust with a means rea gives rise to criminal prosecution as well. 3.6 It is contended that there is no evidence to establish that there is any manipulating act of fraudulent misappropriation, but it is a simple business dealing which attracts civil remedy for damages from the Civil Courts and instead of doing so, the respondent no.2 has initiated the criminal proceedings which shows the mental strata of respondent no.2. 3.7 It is also contended by the applicants that in case of cheating the dishonest intention starts with the every inception of the transaction. 3.7 It is also contended by the applicants that in case of cheating the dishonest intention starts with the every inception of the transaction. But in the case of criminal breach of trust, the person, who comes into the possession of the movable property receives it legally, but illegally retains it or converts it to his own use against the terms of the contract. In present case, it is contended that the respondent no.2 himself has admitted that there was a business transaction between them and the movable property i.e. cloth goods were not retained illegally by the applicants with them, but due to financial crisis in the market and not receiving payments from the parties to whom they had sold the goods, they could not make the payments in time which clearly shows that the entire episode is purely of a civil nature and it creates civil liability and for damages, the respondent no.2 should have exhausted civil remedy instead of filing the present FIR. On all these count, it is prayed by the applicants to quash and set aside the impugned FIR and other consequential proceedings arising out of the said FIR. 4. Heard learned advocates for the parties and perused the papers made available on record. 5. Mr.Sunil Agrawal, learned advocate for the applicants has submitted that in present case, there is a commercial transaction between the parties which is of civil dispute in nature. He has also submitted that the applicants have paid Rs.4,20,000/in piecemeal and the remaining amount can be said to be civil debt. According to him, the complainant could have filed a Civil Suit for recovery of the amount and he has filed criminal complaint to pressurize the applicants for making payment which is of civil dispute. 5.1 Learned advocate for applicants, while referring to the impugned FIR, has submitted that there was no criminal intention from the very beginning. The applicants have also made part payment for the goods which were purchased by them. He has also contended that no ingredient of alleged offences is made out in the impugned FIR. He has also contended that though transaction was carried out in the year 2014, the FIR has been lodged after three years and there is no satisfactory explanation for the same. 6. He has also contended that no ingredient of alleged offences is made out in the impugned FIR. He has also contended that though transaction was carried out in the year 2014, the FIR has been lodged after three years and there is no satisfactory explanation for the same. 6. Per contra, Ms.Monali Bhatt, learned APP for the respondent-State has submitted that on perusal of the FIR, it is clearly established that the ingredients of alleged offences are made out. She has also contended that the Investigating Officer has collected sufficient material against the present applicants. She has also contended that the modus operandi of the present applicants is that initially, they opened a shop in a particular city and purchased goods from the traders and makes part payment thereof, and thereafter, they closed down their business and left the said city ,and thereby, they cheated many persons. Therefore, she has prayed that the impugned FIR lodged against the present applicants may not be quashed and set aside. 7. While supporting the arguments of learned Appellant Ms.Monali Bhatt, Mr.Dharmesh Shah, learned advocate for the respondent no.2original complainant has submitted that it is modus operandi of the applicants that in big city they select the shop, and thereafter, get goods on credit and makes part payment thereof and after some time, they used to close down their shop and ran away from the city. He has also contended that by doing such activities, they have cheated many persons. He has also contended that the complainant has demanded due amount of Rs.13,47,273/from the applicants, but that amount has not been paid to him. Though initially there was no criminal intention on the part of the applicants, but thereafter, they have misappropriated the goods and have cheated the complainant, and therefore, considering the averments made in the FIR and the evidence produced by the Investigating Officer, the ingredients of offences, as alleged in the impugned FIR, are made out. Hence, he has prayed to dismiss the present application. 8. Against the submissions made by learned advocate Mr.Dharmesh Shah, learned advocate for the applicants has submitted that there is no criminal antecedents of the present applicants. The present applicants were arrested in the matter and released on conditional bail by the trial Court by observing that it is a civil dispute. 8. Against the submissions made by learned advocate Mr.Dharmesh Shah, learned advocate for the applicants has submitted that there is no criminal antecedents of the present applicants. The present applicants were arrested in the matter and released on conditional bail by the trial Court by observing that it is a civil dispute. Therefore, he urged this Court to allow the present application by quashing and setting the impugned FIR. 9. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary powershould be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 10. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 11. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 12. 11. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 12. In the present case, charge against the accused is for the offence under Sections 406, 420 and 114 of IPC. As per the case of the prosecution, applicants have purchased grey clothes from the complainant and full payment is not made towards the price of the grey clothes and, thereby, the accused have committed the offence of criminal breach of trust and cheating with the complainant. It is worthwhile to refer to the relevant provisions of Sections 406 and 415 of the IPC, which are as under:- “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.” “Section 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”. The ingredients to constitute an offence of cheating are as follows: “(i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or (b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.” Section 420 of the Penal Code reads thus: “Section 420. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.” Section 420 of the Penal Code reads thus: “Section 420. Cheating and dishonestly inducing deliver of property.Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and 7 which is capable to being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” The ingredients to constitute an offence under Section 420 are as follows: “(i) A person must commit the offence of cheating under Section 415; and (ii) The person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Cheating is an essential ingredient for an act to constitute an offence under Section 420.” 13. Now, considering the well settled principles of law coupled with the facts and the material placed on record, it appears that there is business transaction between the parties. It also appears that initially, payment of Rs.4,20,000/has been made by the applicants to the respondent no.2original complainant, and thereafter, they have not made the payment of dues. It also appears from the police papers that the goods were bought through broker viz. Pavan Mankul Sharma whose statement has been recorded by the Investigating Officer way back in the year 2017. It also appears from the record that the applicants herein have also dealt with many other firms and it is their modus operandi to open the shop in a particular city and after purchasing the clothes and making part payment thereof, they closed down the shop and flew away from the city to their native place. It also appears from the police papers that it is the modus operandi of the present applicants to get goods on credit and make part payment thereof, and thereafter, after some time, ran away from that place by closing down the shop. 14. It also appears from the police papers that it is the modus operandi of the present applicants to get goods on credit and make part payment thereof, and thereafter, after some time, ran away from that place by closing down the shop. 14. It is well settled law that in case of criminal breach of trust, the person, who comes into possession of the movable proper receives it legally, but illegally retains it or converts it to his own use, then the offence of criminal breach of trust is committed. Now, the question is whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case. 15. The Apex Court in the case of Pratibha Rani Vs. Surajkumar & Anr, reported in 1985(2)SCC 370 has observed thus:- “There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive, but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender, who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong deer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import.” 16. Now, considering the material placed on record, it appears that the modus operandi of the present applicants is a reflection of their intention of retaining the property and not making the payment thereof to the supplier of goods. As such, initially, though they have made part payment thereof, but by retaining goods and not making payment of dues establishes the modus operandi of getting goods on credit from the firms and make part payment thereof for some time, and thereafter, closed down the business from the very city and ran away from such city. The facts prima facie established that there is means rea on the part of the applicants. 17. The facts prima facie established that there is means rea on the part of the applicants. 17. Under the circumstances, it is not a fit case wherein inherent power under Section 482 of the Code could be exercised in favour of the applicants-original accused. Resultantly, the present application fails and stands dismissed. Interim relief, if any, stands vacated. Rule is discharged.