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2019 DIGILAW 738 (GAU)

Dieselie Issac Solo v. State of Arunachal Pradesh

2019-06-12

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. D.K. Misra, learned Senior counsel assisted by Mr. B. Prasad, learned counsel for the petitioner. Also heard Mr. N.N.B. Choudhury the learned Senior Govt. Advocate, Arunachal Pradesh for respondent No. 1 and Mr. S. Borthakur learned counsel for the respondent No. 2. 2. Petitioner is the brother of Mizho Issac Solo (M.I. Solo) who was arrested in connection with Itanagar P.S. Case No. 144/2010 corresponding to G.R. Case No. 230/2011 under Section 420 IPC. The respondent No. 2, Sri Jotam Toko Takam as the complainant lodged the FIR in the said case. 3. The respondent No. 2, complainant informed the wife of the brother of the petitioner that her husband was arrested at his instance and unless the family members pay the amount due to him the brother of the petitioner would not be released. The wife of the brother of the petitioner filed a petition under Article 226 of the Constitution of India which was registered as WP (C) 4214/2011 with a prayer for quashing of the FIR against M.I. Solo on 19.8.2011. In the said writ petition this Court passed an interim order on 23.8.2011 permitting the present petitioner to visit his brother, M.I. Solo in the District Jail, Julley in Arunachal Pradesh with one advocate alongwith a direction to the Chief Secretary to the Govt. of Arunachal Pradesh to secure their visit so that they could meet the brother without any resistance from any quarter and move bail application for release of M.I. Solo. 4. A local lawyer moved a bail application before the Judicial Magistrate, 1st Class, Itanagar at Naharlagun which was granted on 1.9.2011 with the condition of furnishing bail amount of Rs. 15,000/- with one local surety of like amount. Bailor should be a permanent resident of Itanagar and if he is non-Arunachallee he/she should be a regular Govt. Employee of State of Arunachal Pradesh. Finding the said conditions onerous, the wife of the brother of the petitioner filed an application for modification of the conditions of the bail order before this Court. Vide order dated 14.9.2011 the order was modified to the extent that the accused person shall furnish bail amount of Rs. 30,000/- with further direction to provide security to the petitioner for the safe return journey to Banderdewa from Naharlagun. 5. Vide order dated 14.9.2011 the order was modified to the extent that the accused person shall furnish bail amount of Rs. 30,000/- with further direction to provide security to the petitioner for the safe return journey to Banderdewa from Naharlagun. 5. The petitioner alongwith the lawyer from Guwahati went to Itanagar to release his brother on bail as per the modified condition of bail order originally passed by the Judicial Magistrate, 1st Class, Itanagar at Naharlagun. The petitioner alongwih the lawyer were escorted by the Arunachal Pradesh Police from Banderdewa to Naharlagun in compliance of the order dated 14.09.2011 of this court. Finally the brother of the petitioner was released on bail after furnishing the bail amount. At the time when the petitioner was in the court at Itanagar, the respondent No. 2 was present in the court and demanded the petitioner to pay the alleged amount of Rs. 2 crores due from his brother M.I. Solo. The petitioner told him that he had no knowledge of the same and not responsible for the same. After release of the brother, the petitioner alongwith him and the lawyer proceeded to Dimapur via Guwahati. 6. The petitioner in the month of December, 2013 was called to the Dimapur Police Station and informed that the Judicial Magistrate, Itanagar had issued summons against him as accused person in connection with C.R. Case No. 38 of 2012 under Section 420 IPC and handed over a copy of the order dated 21.8.2012 of the said court. Thereafter the present petitioner with the prayer for setting aside and quashing of the impugned order dated 21.8.2012 passed by the Judicial Magistrate, First Class, Itanagar against the petitioner as well as the criminal proceeding against the petitioner in C.R. Case No. 38/2012 pending in the said court was filed. Vide order dated 25.3.2013 the proceeding in C.R. Case No. 38 of 2012 as well as the warrant of arrest issued against the petitioner were stayed. 7. Mr. Mishra submits that the records of the case was called for and then only the petitioner learnt that the case was filed by the respondent No. 2 on the basis of the so called agreement entered between the petitioner and the respondent No. 2. Referring the complaint and the agreement annexed to the complaint, Mr. Mishra submits that no criminal case whatsoever is made out in the complaint dated 8.8.2012. Referring the complaint and the agreement annexed to the complaint, Mr. Mishra submits that no criminal case whatsoever is made out in the complaint dated 8.8.2012. There is neither any allegation of fraudulent inducement against the petitioner nor there is any allegation that pursuant to the fraudulent or dishonest intention the complainant delivered money to the petitioner. If the agreement is considered it shows that money was allegedly given to the brother of petitioner and the petitioner was made to sign an undertaking to pay Rs 2 crores and interest for three years thereon. No case under Section 420 IPC is made out and as such the criminal proceeding pending before the Judicial Magistrate, Itanagar is an abuse of the process of the court and liable to be interfered with by this court. Mr. Misra relies the following decisions in order to support his contention: 1. R.P. Kapur vs. State of Punjab, AIR 1960 SC 866 2. State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335 3. Vir Prakash Sharma vs. Anil Kumar Agarwal, (2007) 7 SCC 373 4. Hari Prasad Chamaria vs. Bishun Kumar Surekha, (1973) 2 SCC 823 5. Manoranjan Sinha vs. Bishamborial Sahoo, 1976 Crl. L.J. 1622 Mr. Borthakur in response to the submission of Mr. Misra vehemently objects and submits that the criminal intention at the time of entering into the agreement is very much clear as the petitioner accused person never visited Itanagar in terms of promise/ promises made in the said agreement and the same itself leads to the conclusion of fraudulent intention while expressing for its performance and willingness from the subsequent act of the petitioner. 8. The submissions of the learned counsel are considered. The complaint was lodged against the petitioner which is reproduced herein-below:- "To 08.08.2012 The Judicial Magistrate, 1st Class Capital Complex Naharlagun, Papun Pare District (Arunachal Pradesh) Subject: Complain against Shri Dieselie Issac Solo Sir, I am to inform you that on 16th September, 2011 Shri Dieselie Issac Solo S/o late Niedelie Solo, house No. 62, village Diphurpar, P.O. and P.S. Diphurpar, District Dimapur (Nagaland) had agreed to pay sum of Rs. 3(three) crore alongwith interest to a mutual agreement. However after lapse of 11 months neither he had returned back the money nor came to Itanagar to settle the case. 3(three) crore alongwith interest to a mutual agreement. However after lapse of 11 months neither he had returned back the money nor came to Itanagar to settle the case. After the arrest of his brother Shri Mezhu Issac Solo in C/W ITA PSC No. 144/10 u/s 420 IPC. He had agreed to settle the case within a period of 1 month and also repay back the cheated amount. Therefore, I request your good self to register a criminal case against them under provision of Indian Penal Code and punish them as per law. The copy of deed of agreement is enclosed herewith. Submits for your needful action please. Thanking you Sir. Yours faithfully Sd/- Illegible (Jotam Toko Takam) P. Sector, Itanagar Mobile 9436055040" "DEED OF AGREEMENT This DEED OF AGREEMENT is made in this 16th day of September, 2011 at Itanagar BETWEEN Sri Diesellie Solo S/o Lt Neidelie Solo R/o Dimapur, Nagaland (hereinafter called the first party of the first part. -AND- Sri Jotam Toko Takam aged about 45 years, S/o Late Toko Henda R/o Yazali P.O. and P.S. Yazali District Lower Subansiri, Arunachal Pradesh (hereinafter called the second party) of the other part. WHEREAS, Sri Mezhu Solo, accused in Itanagar P.S. Case No. 144/2010 u/s 420 IPC had taken a loan of Rs. 2 crores from the second party herein vide agreement dated 30th August 2008 at the rate of 15% per annum. WHEREAS, said accused person issued 4 (four) Nos. of Cheques amounting to Rs. 50,00,000/- (Rupees fifty lakhs only) each in favour of the second party on 31.5.2010 as repayment of loan amount. However, all the cheques become due to insufficient of funds. -AND- WHEREAS, the second party approached the accused person the debtor on several occasion for return of loan amounts. -AND- WHEREAS, after several attempt to get back the loan amount the second party lodged a complaint against the accused person and accordingly, the Itanagar Police register a criminal case under Section 420 IPC and at last able to arrest him from New Delhi on 11.8.2011 and brought to Itanagar for further investigation. -AND- WHEREAS, during the pendency of Police case the first party being the elder brother of the accused person moved bail petition before the Hon'ble High Court Gauhati Principal Seat and obtained bail for the accused and has agreed to settle the loan amount case with the second party amicably. -AND- WHEREAS, during the pendency of Police case the first party being the elder brother of the accused person moved bail petition before the Hon'ble High Court Gauhati Principal Seat and obtained bail for the accused and has agreed to settle the loan amount case with the second party amicably. NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:- 1. That the first party shall bring Sri Takuwati, Sri Kezha Issac Solo and Sri Mezhu Solo, accused to Itanagar within one month and settle the money loan case of the second party. 2. That the first party undertakes not to move any petition before Hon'ble Court for staying of proceeding of the Itanagar P.S. Case No. 144/2010 u/s 420 IPC like realization of loan amount with interest. 3. That the first party agrees to pay the second party the total loan amount of Rs. 2,00,00,000/- (Rupees two crore) plus calculating the three years interest. 4. That as agreed by the first party, the second party shall not further lodge complaint against the accused Mezhu Solo within the period as stated in this agreement. 5. That as and when the first party repays the loan amount with interest the second party shall pursue the Hon'ble court for closure of Itanagar P.S. Case No. 144/2010 u/s 420 IPC. IN THE WITNESS whereof the parties hereby put their respective hand on the day and date mentioned herein above. Witnesses: Sd/- Illegible (First Party) Sd/- Illegible (Second Party)." Deposition of Witness No. 1, Nich Nikh, S/o Late Nich Jill:- "1. That I have come to this court in connection to cheating case against Sri Dieselie Issac Solo. On 16th September 2011 at Hotel Dony Polo Ashoka Itanagar time around 11.00 am, Sri Dieselie Isac Solo made an agreement to repay sum of Rs. 3,00,00,000/- alongwith interest from the date of agreement. 2. Then we went to the court of Judicial Magistrate First Class Itanagar and executed the deed of agreement on same day. 3. In the court I was present as a witness alongwith Sri Taku Wati Ao who was the witness of Sri Dieselie Isac Solo. Sd/- Illegible 21.08.2012." 9. The learned Judicial Magistrate First Class, Itanagar Capital Complex, Naharlagun (AP) on 21.08.2012 took cognizance of the offence as follows:- "21.08.2012 - Appeared complainant Shri Jotam Toko Takam and also present Shri Nich Nikh witness in the instant complaint case. Sd/- Illegible 21.08.2012." 9. The learned Judicial Magistrate First Class, Itanagar Capital Complex, Naharlagun (AP) on 21.08.2012 took cognizance of the offence as follows:- "21.08.2012 - Appeared complainant Shri Jotam Toko Takam and also present Shri Nich Nikh witness in the instant complaint case. The complainant and the witness were examined by this court and the same has been recorded on oath. On perusal of the statement of the complainant and the witness, found prima-facie case against the alleged accused Dieselie Issac Solo and accordingly the case is made out under Section 420 IPC. Hence I am taking cognizance of the offence u/s 420 IPC. Issue summon to the accused Dieselie Issac Solo to be appeared personally before this court on 11th September, 2012 at 11-30 pm. Issue this copy of order to all for compliance. Sd/- Illegible JMFC (Office seal)." 10. Thus from the aforesaid materials the learned court below was satisfied "prima-facie" a case against the petitioner was made out and as such issued the process. An offence under Section 420 IPC is committed by a person when he cheats another person and induced the other person dishonestly to deliver property. Section 415 IPC defines the term "cheating" and the ingredients required are as follows: 1. Deception of any person. 2. (a) Fraudulently or dishonestly inducing that person: (i) To deliver any property to any person. (ii) To consent that any person shall retain any property. (b) Intentionally inducing that person 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. Thus the essential ingredients to form an offence under Section 420 IPC are deception alongwith dishonest inducement which the complainant must complained of. 11. In the present case in hand the learned court below took cognizance of an offence u/s 420 IPC on the basis of its prima-facie satisfaction i.e. a case of legally rebuttable presumption u/s 420 IPC is established. The case of the respondent No. 2 complainant is plain and simple that the petitioner assured to pay the total loan amount of Rs. 2 crores alongwith interest. But even after passing of 11(eleven) months the petitioner did not pay the amount nor did he come to Itanagar to settle the case. The case of the respondent No. 2 complainant is plain and simple that the petitioner assured to pay the total loan amount of Rs. 2 crores alongwith interest. But even after passing of 11(eleven) months the petitioner did not pay the amount nor did he come to Itanagar to settle the case. This allegation is on the basis of an agreement purportedly shown to be executed between the petitioner and the respondent No. 2. The question of cheating does not arise inasmuch as the complainant on the basis of the purported promise made in the agreement was not dishonestly deceived to do any act causing damage or harm to him nor induced the complainant to deliver any property as required for an offence u/s 415 IPC which are impregnated in Section 420 IPC. Further the agreement only for the purpose of this petition shows that there was ad-idem of both the parties who are signatories to it. If at all there is a dispute the same is a civil dispute of breach of contract and cannot be termed to be a criminal offence on the part of the petitioner if all the statement, contents of the complaint are taken on its face value. There is nothing to show that the petitioner at the time of signing the agreement induced the complainant, respondent No. 2 to enter into the agreement nor there is any fraudulent intention on the part of the petitioner at the beginning of the transaction promised. In fact from the recital of the agreement it is a case that as the brother of the petitioner defaulted in paying the amount as per cheques he handed over to the complainant and the same were not honoured by the bank, the respondent No. 2 is aggrieved. There is no culpability of any offence under the criminal law. 12. The ingredients u/s 415 IPC indicates two separate classes of acts which the person deceived may be induced to do. At first the person deceived may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section 415 IPC is doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. At first the person deceived may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section 415 IPC is doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest and in the second class of acts, the inducing must be intentional but not fraudulent or dishonest. In Hridaya Ranjan Prasad Verma vs. State of Bihar and Another, (2000) 4 SCC 168 , after interpreting Section 415 of the IPC as hereinabove stated the Hon'ble Apex Court in a complaint alleging inter-alia that by conspiring together, the accused persons appellants defaulted and cheated the respondent No. 2 complainant by giving wrongful information and assurance inducing them to enter into negotiation and also to advance the appellants a heavy amount with ulterior design to acquire wrongful gain, quashed the complaint and held that continuing the criminal proceeding against the appellants accused persons as an abuse of the process of court by explaining Section 415 IPC and its ingredients as follows: "Para 15: In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. 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 fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." 13. If the aforesaid ratio is applied in the present case in hand it is found that the complainant failed to show that the petitioner accused person had fraudulent or dishonest intention at the time of making the promise. If the aforesaid ratio is applied in the present case in hand it is found that the complainant failed to show that the petitioner accused person had fraudulent or dishonest intention at the time of making the promise. Accordingly it cannot be presumed that mere failure to keep up promise subsequently cannot be held that there was culpable intention on the part of the petitioner right at the time of beginning of making the promise. 14. In the case of State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335 it was held that where the allegation made in the first information report or the complaint, even if they are taken at their face value and accepted in its entirety does not prima-facie constitute any offence or make out a case against the accused person, the inherent powers u/s 482 Cr.P.C. can be invoked to prevent abuse of the process of the court and to secure the ends of justice. The present case fulfills the said criteria inasmuch as the complaint does not disclose any offence against the present petitioner accused person and as such criminal proceeding initiated against the present petitioner accused person by issuing summons in connection with C.R. Case No. 38/2012, u/s 420 IPC by the learned court of Judicial Magistrate, Itanagar, Naharlagun is set aside and quashed. 15. Send back the case record and the interim order passed earlier stands vacated. This criminal petition is accordingly disposed of.