Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 2045 (ALL)

Priyanka Gupta v. State of Uttar Pradesh

2024-09-11

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard Mr. Siddharth, learned counsel for the applicants, Mr. Vijit Saxena, learned counsel for opposite party No.2 and Mr. Rakesh Kumar Mishra, learned AGA for the State. 2. Instant application under Section 482 Cr.P.C. has been preferred by applicants with a prayer to quash the Summoning order dated 01.07.2023 passed in Complaint Case No. 215 of 2020 (Smt. Shweta Gupta Vs. Rahul Gupta and others) under Sections 420, 406, 120-B I.P.C., Police Station-Railway Road, District- Meerut and also to set aside order dated 16.01.2024 passed by Additional Sessions Judge/Special Judge, (Anti Corruption Act), Meerut in Criminal Revision No. 504 of 2023. 3. In the present case, applicant No.2 is husband of the complainant whereas applicant No.1 is sister of applicant No.2. 4. Earlier, the complainant has lodged an FIR dated 22.06.2019 against the applicants, their father and mother for offence under Section 498-A, 323, 504, 506 and 406 I.P.C. and Section 3/4 Dowry Prohibition Act, wherein after investigation, a charge-sheet was filed on 12.07.2019 against all named accused persons except, the applicant No.1 herein. 5. The complainant thereafter filed an application under Section 156(3) Cr.P.C. against present applicants and their father and mother on 15.11.2019 that they have committed an offence under Section 420, 467, 468, 471, 504, 506 and 120-B I.P.C. 6. It was alleged that they hatched a conspiracy, wherein the applicant No.1 committed cheating and thereby withdrew money from the bank account of the complainant from the bank, where applicant No.1 was working as a Manager in a different branch at Bijnor. In all, Rs.1,18,000/- was withdrawn out of which Rs.70,000/- was transferred to the bank account of the applicant No.1 at Saboon Godown, Branch at Meerut. It was also alleged that applicant No.2 (husband of complainant) has linked his bank account with his email and phone number so that she may not get alert messages. She came to know about cheating when she checked account details on 17.02.2019. 7. The said application was considered as a complaint and statement of the complainant and witnesses were recorded under Section 200 and 202 Cr.P.C. For reference, statement of complainant recorded under Section 200 Cr.P.C. on 13.09.2021 is reproduced hereinafter:- 8. She came to know about cheating when she checked account details on 17.02.2019. 7. The said application was considered as a complaint and statement of the complainant and witnesses were recorded under Section 200 and 202 Cr.P.C. For reference, statement of complainant recorded under Section 200 Cr.P.C. on 13.09.2021 is reproduced hereinafter:- 8. The Learned Magistrate has summoned a police report under Section 202(1) Cr.P.C. and after considering statements as well as a hand writing expert's report also, summoned the applicants under Section 420, 406 and 120-B I.P.C. by the impugned summoning order dated 01.07.2023. For reference, same is reproduced hereinafter in its entirety:- 9. The aforesaid order was challenged at instance of the applicant by way of filing a Revision Petition, however, it got dismissed by another impugned order dated 16.01.2024. For reference, relevant part thereof is also reproduced hereinafter:- 10. The court has initially tried to mediate since complainant and applicant No.2 are wife and husband, but parties failed to arrive at any mutual agreement. 11. Mr. Siddharth, learned counsel for the applicants submitted that bank has conducted an internal inquiry on basis of a complaint filed by the complainant and by a reasoned report, all allegations were found false and no such offence was found to be committed by the applicant No.1 or applicant No.2. Learned counsel has referred contents of it as well as a Handwriting Expert’s Report that signature on withdrawal form was of the complainant. It was also argued that on same set of facts, offence under Section 420 and 406 I.P.C. could not be simultaneously make out. 12. The above submissions are vehemently opposed by Mr. Vijit Saxena, learned counsel for opposite party No.2. He has submitted that learned Magistrate has conducted an inquiry himself on basis of the statements recorded under Section 200 and 202 Cr.P.C. as well as he also took note of the police report dated 29.09.2022 summoned under Section 202(1) Cr.P.C. as well as a report of the Hand Writing Expert, dated 02.12.2022 that signature on withdrawal forms were not of the complainant i.e. account holder. The learned Magistrate also took note of statement of Manager of the Bank as mentioned in the police report under Section 202(1) Cr.P.C. that on basis of a withdrawal form, money could be given to account holder only. The learned Magistrate also took note of statement of Manager of the Bank as mentioned in the police report under Section 202(1) Cr.P.C. that on basis of a withdrawal form, money could be given to account holder only. Though, he fairly submitted that in given set of circumstances, offence under Section 420 and 406 I.P.C. may not go simultaneously, however, in this regard he has submitted that allegation for cheating and conspiracy are prima facie made out against the applicants. Offence under Section 406 I.P.C. could be made out against employees of Bank, but they were not summoned. 13. This Court is of considered opinion that on same set of facts, offence under Section 420 and 406 I.P.C. may not be simultaneously make out and in this regard relevant paragraphs of a recent judgment delivered by Supreme Court on 23.08.2024 in the case of Delhi Race Club (1940) Ltd. & Ors. Vs. State of Uttar Pradesh & Anr. in CRIMINAL APPEAL NO. 3114 OF 2024 being relevant are reproduced hereinafter:- "41. Before we close this matter, we would like to say something as regards the casual approach of the courts below in cases like the one at hand. The Indian Penal Code (IPC) was the official Criminal Code in the Republic of India inherited from the British India after independence. The IPC came into force in the sub-continent during the British rule in 1862. The IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita (“BNS”) in December 2023 which came into effect on 1 st July 2024. It is indeed very sad to note that even after these many years, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating. 42. When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police – to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind." (emphasis supplied) 14. The Court, in the aforesaid circumstances could remit the case to the learned Trial Court to decide afresh, however, considering statement of opposite party No.2 under Section 200 Cr.P.C., the Court proceeds to consider whether in given set of circumstances, on basis of material available, there are sufficient material to proceed against the applicants for offence under Section 420 or 406 read with 120-B I.P.C. 15. In above circumstances, it is not much under dispute that allegation under Section 406 I.P.C. (criminal breach of trust) could not be made out, since ingredients thereof are absent. There was neither any 'entrustment' nor allegation of 'dishonest misappropriation' in violation of any 'direction of law' or 'any legal contract'. (see Deepak Gaba vs. State of Uttar Pradesh and Anr. reported in 2023 (3) SCC 423 ) 16. It is well settled that outcome of an internal inquiry would not bar criminal proceedings on same allegations since nature of proof is different in both the proceedings. In departmental proceedings, it would be preponderance of probability whereas in criminal cases it would be to prove beyond reasonable doubt. The Hand Writing Expert’s report relied during said inquiry could not be considered at this stage as the same would be a proposed defence (see Samar Bahadur Singh Vs. State of Uttar Pradesh and Ors., (2011) 9 SCC 94 ). Otherwise also, under Section 200 Cr.P.C., the Magistrate has to conduct an inquiry himself on basis of statements made on oath as well as considering other materials. State of Uttar Pradesh and Ors., (2011) 9 SCC 94 ). Otherwise also, under Section 200 Cr.P.C., the Magistrate has to conduct an inquiry himself on basis of statements made on oath as well as considering other materials. In the present case, the complainant has come up with a case that applicants have hatched a conspiracy and to execute it, applicant No.1 has committed cheating and by forging signature of the complainant on a withdrawal form to withdraw money from bank account of the complainant to transfer the same to her account. In this regard, statement of the Bank Manager recorded during police inquiry under Section 202(1) Cr.P.C. would be relevant and for reference, same is reproduced hereinafter:- 17. The above statement is sufficient that applicant No.1 has withdrawn money from bank account of the complainant by misusing her position of Deputy Manager of the Bank. It would also be relevant to refer here the Handwriting Expert report submitted by the complainant before the Magistrate wherein it was opined that signature of the complainant on the withdrawal form were forged. 18. In the aforesaid circumstances there are sufficient evidence and grounds that an offence under Section 420 I.P.C. is prima facie made out against the applicant. So far as, allegation of conspiracy is concerned, it is on record that bank account of the complainant was linked with phone and email of the applicant No.2 i.e. husband of the complainant, therefore, alert messages were received by applicant No.2, however, with a dishonest intention and under a conspiracy, same were not communicated to his wife, therefore, at this stage, prima facie offence under Section 420 read with 120-B I.P.C. is also made out. 19. In the aforesaid circumstances, the Court is of a considered opinion that the learned Magistrate has not committed any manifest error in summoning the applicants under Section 420 and 120-B I.P.C. The learned Magistrate has assigned requisite reasons that there are sufficient grounds to proceed under Sections 204 Cr.P.C. (See Lallan Kumar Singh and Ors. Vs. State of Maharashtra reported in (2022) SCC Online SC 1383). 20. Vs. State of Maharashtra reported in (2022) SCC Online SC 1383). 20. As observed above, since there is no allegation in regard to Section 406 I.P.C. against the applicants, therefore, summoning order dated 01.07.2023 is interfered to extent of summoning the applicants under Section 406 I.P.C., however, so far as summoning order to summon under Sections 420 and 120B I.P.C. is concerned, it remained uninterfered and the impugned order is modified to that extent only. 21. In view of the above, instant application is disposed of. 22. Registrar (Compliance) to take steps.