IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Criminal Petition No.557/2013
Shri Debabrata Phukan
S/o Late Tuwa Kanta Phukan
Permanent resident of Ward No. 11,
K.B. Road, North Lakhimpur Town,
P.S. North Lakhimpur,
District – Lakhimpur, Assam
Presently residing at
Khelmati Club Road, Jorhat,
District – Jorhat, Assam.
…………..PETITIONER
– Versus –
1. The State of Assam
Represented by the Public Prosecutor,
State of Assam.
2. Sri Himeswar Bora
Son of Late Nadi Ram Bora
Resident of Village – Deotola
P.S. – Narayanpur,
District – Lakhimpur, Assam.
………….RESPONDENTS.
BEFORE
THE HON’BLE MR. JUSTICE A.K.GOSWAMI
Advocates for the petitioner : Mr. M. Sarma
Ms. I. Gohain
Mr. R. Sarma
Advocate for the State : None appears.
Advocate for Opposite Party No. 2 : M. Choudhury
Date of hearing : 05.02.2014
Date of judgment :
JUDGMENT AND ORDER (CAV)
By this application under Section 482 of the Code of Criminal
Procedure, 1973, for short, ‘the Code’, the petitioner prays for quashing of the
order dated 10.8.2012, passed by the Additional Chief Judicial Magistrate, Lakhimpur, in G.R. Case No.183/2012, framing charge against him under
Section 406/420 IPC and subsequent orders passed thereon including the
proceeding itself, now pending in the court of learned Additional Chief Judicial
Magistrate, Lakhimpur.
2. Heard Mr. M.Sarma, learned counsel for the petitioner. Heard also Mr.
M. Choudhury, learned counsel for the opposite party No. 2. None appears for
the State of Assam, arrayed as opposite party No.1.
3. The opposite party No.2, as an informant, filed an ejahar before the
Officer-In-Charge, Narayanpur Police Station. The Ejahar reads as follows:
“With due respect I would like to state that on 19.7.2010 the
above named accused came to my house at around 10 A.M. and
took an amount of Rs.11,00,000/- (Rupees Eleven Lakh) only due
to his urgent financial need and entered into an agreement with
a promise to return the amount after six months. Out of above,
he returned Rs.4,00,000/- (Rupees Lakhs) only at my residence
after around 3(three) months from the aforesaid date. The
balance amount of Rs.7,00,000/- (Rupees Seven lakhs) only was
not returned and when the accused was insisted upon, he abused
with some offensive language with a threatening to cause
physical injury to me and tried to misappropriate the amount. It
is known that, besides me the accused has taken money from
other persons with an inducement to give jobs to them.
Therefore your Honour may be pleased to take appropriate
actions by investigating the matter.
Signature of the informant
Sd/ Himeswar Bora”
4. On the basis of the said ejahar, Narayanpur Police Station Case
No.18/2012 under Section 406/420 IPC was registered.
5. The statement of the opposite party No.2 was recorded under Section
161 of Cr.PC and his statement, recorded in vernacular and a translated copy
thereof, are annexed as Annexure-E to the petition. Translated typed copy,
though substantially correct, contains some errors in translation. In his
Section 161 Cr.PC statement, the opposite party No.2 had stated that thepetitioner had taken a loan amount of Rs. 11 lakhs in the year 2009 from his
residence (year written as 2007 in the translated copy) on the plea that the
petitioner was in urgent need of money and he promised to refund the said
amount within a period of six months. The petitioner had returned a sum of
Rs. 4 lakhs within a period of three months and when the balance amount
was asked for, the petitioner had issued two cheques of Rs. 3 lakhs each,
dated 29.5.2010 and 11.6.2010. When he enquired with the North Lakhimpur
Branch of SBI, he came to learn that the cheques were fake and the
petitioner in his A/c No. 11015784124, had no money. Finding no alternative,
he lodged a complaint against the petitioner before the Bihpuria Police
Station. Acting on the said complaint, police personnel of Bihpuria Police
Station called both of them to the police station on 29.7.2010 and the
petitioner executed a document promising to pay the balance amount. Even
thereafter, the petitioner did not return the amount. Coming to know that the
petitioner was coming from Jorhat to his residence via Dhalpur Jamuguri
Ghat, he took the assistance of the services of Dhalpur Police Station and the
police personnel of Dhalpur Police Station took the petitioner into custody and
produced him before Bihpuria Police Station. Bihpuriha Police Station had sent
the petitioner to Narayanpur Police Station and accordingly, he lodged the
ejahar. Police seized the two fake cheques in question, copy of the agreement
evidencing receipt of loan and a document written in the hand of the
petitioner acknowledging receipt of six lakhs from him. It is also stated that
he had signed in the said seizure list.
6. A perusal of the aforesaid statement would go to show that even before
the instant FIR came to be registered, the petitioner was illegally taken into
custody.
7. Subsequently, charge-sheet dated 16.3.2012 was submitted under
Section 406/420 IPC against the petitioner and by the order dated 10.8.2012,
the learned Magistrate framed charge against the petitioner under Section
406/420 IPC. Thereafter, vide various orders, NBWA against the petitioner
was issued for his absence without steps.
8. Mr. M. Sarma, learned counsel for the petitioner submits that the
allegations made in the complaint petition are totally false and the petitioner
has, in this petition, disclosed correct facts. He has also submitted that as in
an application under Section 482 of the Code, the court will not examine thetruthfulness or the falsity of the allegations, he will not elaborate in that
aspect. He contends that on the basis of the allegations made in the ejahar
and the statements made by the informant under section 161 Cr.PC, even if
such statements are taken as true on face value in its entirety, no case is
made out for framing of charge under Section 406/420 IPC. It is submitted by
him that framing of charge-both under Sections 406/420 is also misconceived.
If a person is accused of having committed an offence for criminal breach of
trust, he cannot, on the same facts, be accused to have committed the
offence of cheating, too, he submits. In support of his submissions, the
learned counsel places reliance in the following judgments: (i) (2009) 3 SCC
78 (V.Y.Jose and another –vs- State of Gujarat and another); (ii) AIR
2009 SC 3191 (Dalip Kaur & ors –vs- Jagnar Singh and another ) and
(iii) 2009 (4) GLT 741 (Mahindra and Mahindra Financial Services Ltd
and another –vs-Delta Classic Pvt. Ltd).
9. Mr. M. Choudhury, learned counsel for the opposite party No. 2,
submits that allegations made in the ejahar as well as in the 161 Cr.PC
statements constitute the ingredients of Section 406/420 IPC and therefore,
no interference is called for with the impugned order of framing of charge and
there being no merit in this petition, the same is liable to be dismissed.
10. In Onkar Nath Mishra and ors. Vs. State (NCT of Delhi), reported
in (2008) 2 SCC 561, the Supreme Court had observed that it is trite that at
the stage of framing of charge the court is required to evaluate the material
and documents on record with a view to finding out if the facts emerging
therefrom, taken at their face value, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage, the court is not
expected to go deep into the probative value of the material on record. What
needs to be considered is whether there is a ground for presuming that the
offence has been committed and not whether a ground for convicting the
accused has been made out. At this stage, even strong suspicion founded on
material which leads the court to form a presumptive opinion as to the
existence of the factual ingredients constituting the offence alleged would
justify the framing of charge against the accused in respect of the commission
of that offence.
11. In V.Y. Jose (supra), the Apex Court in paragraphs 14 and 21 laid“14. An offence of cheating cannot be said to have been made
out unless the following ingredients are satisfied:
(i)Deception of a person either by making a false or
misleading representation or by other action or omission;
(ii)Fraudulently or dishonestly inducing any person to
deliver any property; or 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.
For the purpose of constituting an offence of cheating, the complainant
is required to show that the accused had fraudulent or dishonest
intention at the time of making promise or representation. Even in a
case where allegations are made in regard to failure on the part of the
accused to keep his promise, in the absence of a culpable intention at
that time of making initial promise being absent, no offence under
Section 420 of the Penal Code can be said to have been made out.”
“21. There exists a distinction between pure contractual dispute of a civil
nature and an offence of cheating. Although breach of contract per se would
not come in the way of initiation of a criminal proceeding, there cannot be
any doubt whatsoever that in the absence of the averments made in the
complaint petition wherefrom the ingredients of an offence can be found out,
the court should not hesitate to exercise its jurisdiction under Section 482 of
the Code of Criminal Procedure.”
12. In Dalip Kaur (supra), the Apex Court laid down that an offence of
cheating would be constituted when the accused had fraudulent or dishonest
intention at the time of making promise or representation and that a pure and
simple breach of contract does not constitute an offence of cheating. It was
also held in paragraph 12 of the said judgment as follows:
“12.The High Court, therefore, should have posed a question as to
whether any act of 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 a breach ofcontract 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. Thus, in order to sustain a plea of offence under section 420 IPC,
the complaint must disclose that the accused had dishonest or fraudulent
intention at the time the complainant had parted with the property or that
the accused, by making a representation at or before the time the
complainant had parted with property, deceived the complainant and
thereby induced the complainant to deliver property and that the accused
knew such representation to be false. Section 415 IPC mandates that
there has to be dishonest intention from the very beginning, which is sine
qua non to hold the accused guilty for commission of the said offence.
When allegations are made in regard to failure on the part of the accused
to keep his promise, in the absence of culpable intention at the time of
making initial promise, no offence under section 420 IPC can be said to
be made out.
14. In Mahindra and Mahindra (supra), this court had stated in
paragraphs 12,14,15,16 and 17 as follows:
“ 12…..quashing of a First Information Report or a complaint is
possible (a) when the allegations made in the First Information
Report or the complaint, even if taken at their face value and
accepted in their entirely as true, do not prima facie constitute
any offence or make out a case against the accused; (b) when
the uncontroverted allegations made in the FIR or complaint and
evidence collected in support of the same do not disclose the
commission of any offence and/or make out a case against the
accused; and (c) when the allegations made in the FIR or
complaint are so absurd and inherently improbable that on the
basis of such absurd and inherently improbable allegations, noprudent persons can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.”
14. In “criminal breach of trust”, an accused comes into
possession of a property or acquires dominion over a property
honestly and bona fide, but he develops dishonest intention
subsequent to the taking possession of, or subsequent to having
acquired the dominion over, the property and, having developed
such dishonest intention, he dishonestly misappropriates or
converts to his own use the property or dishonestly uses or
disposes of the 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 willfully suffers any other
person so to do.
15. Thus, in “criminal breach of trust”, the intention of the
accused cannot be dishonest or mala fide at the time, when he
comes into possession of the property or comes to acquire
dominion over the property; the accused develops dishonest
intention and actuated by such mens rea, he converts to his own
use the property or dishonestly uses or disposes of the 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 willfully suffers any other person so to do.
16. Contrary to what happens in “criminal breach of trust”, the
intention of the accused, in a case of “cheating”, is dishonest
from the very commencement of the transaction. There is really
no consent by the person, who is intentionally induced by
deception to deliver the property or allow any person to retain
the property or is intentionally induced, as a result of deception,
to do or omit to do anything, which he would not do or omit to
do 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. In short, thus, while in “criminal
breach of trust”, the accused comes into possession of theproperty without dishonest intention and develops dishonest
intention subsequent to his coming into possession of the
property, the offence of ‘cheating’ is one, wherein the accused
has dishonest intention from the very commencement of the
transaction.
17. In the light of the distinction, which exists between an
offence of ‘criminal breach of trust’ and an offence of ‘cheating’,
it becomes clear that if a person is accused of having committed
an offence of ‘criminal breach of trust’, he cannot, on the same
facts and in the same breath, be accused to have committed the
offence of ‘cheating’ too. In the present case, the learned
Magistrate has taken cognizance of offences under both penal
provisions, namely, Section 420 and 409 IPC. Having taken
cognizance of both the offences aforementioned, the learned
Magistrate has accordingly directed issuance of processes. This
reflects non-application of mind inasmuch as the accused must
know as to whether he is summoned to defend himself against
the accusation of ‘criminal breach of trust’ or ‘cheating’, for, he
cannot be, in one and the same breath, be accused of having
committed both the said offences.”
15. From the perusal of the allegations made in the FIR and the statements
of the informant under section 161 of the Code it becomes manifest that
allegations essentially disclose disputes of civil nature and the complainant
has a remedy in the civil court and therefore the same should not be allowed
to be subject matter of criminal offence. A purely civil dispute is sought to be
given the colour of criminal offence and the antecedent facts leading to the
filing of the ejahar in question suggest in unmistakable terms that resort to
criminal proceeding was taken in order to wreck vengeance on the petitioner.
The prosecution case is out and out a loan transaction and failure to pay the
loan, without anything more, may create civil liability, but will not fasten the
petitioner with criminal liability for the offence of cheating. Ingredients of
section 406 are also in no way attracted to the facts alleged as there is no
allegation of entrustment of any property by the informant to the petitioner.
16. In view of the discussions above, ingredients and pre-requisites of
sections 406/420 IPC being totally absent and lacking, the learned trial Courtcommitted manifest error of law in framing charge against the petitioner
under sections 406/420 IPC and continuance of proceeding in G.R. Case No.
183/2012, pending in the Court of learned Additional Chief Judicial Magistrate,
Lakhimpur, will be an abuse of the process of the law.
17. Accordingly, the revision petition is allowed. The impugned order dated
10.08.2012 passed by the learned Additional Chief Judicial Magistrate,
Lakhimpur, in G.R. Case No. 183/2012 and the proceeding of G.R. Case No.
183/2012, pending in the Court of the Additional Chief Judicial Magistrate,
Lakhimpur are quashed. No cost.
JUDGE
