Heard Sri Vikas Sharma, Advocate, holding brief of Sri Dharmendra Singhal, learned counsel for the revisionist, Sri Anil Srivastava, learned counsel for opp. party No.2 and learned AGA for the State.
This Criminal Revision has been preferred against the judgment and order dated 21.3.2003, passed by the Additional Sessions Judge, Court No.14, Aligarh in Criminal Revision No.720 of 2003 (Ramesh Chander Vs. Hem Garg), whereby the Lower Revisional Court discharged the accused opp. party No.2 for offence under Section 406 I.P.C.
Brief facts of the case is that the revisionist Ms. Hem Garg had a brother Sri H.C. Agarwal, who died in an accident. Before his death the accused Ramesh Chander Saxena had given him a cheque of Rs.50,000/- on 21.6.1995. This payment was made to the complainants' brother in lieu of the money taken by the accused as loan. The said cheque was not presented to the Bank on the request of the accused himself as he had no sufficient funds. Before the Cheque could be presented to the Bank, the revisionist's brother Sri H.C. Agarwal died in a road accident. After two years, revisionist gave a notice on 3.9.1997 through her lawyer to the accused and after that filed a complaint in the Court of 3rd Additional Chief Judicial Magistrate, Aligarh for offence under Sections 420, 406 I.P.C.
After recording the statement of the revisionist under Section 244 Cr.P.C. and other documentary evidence, the 2nd Additional Civil Judge (Junior Division) Aligarh framed charges against the accused for offence under Section 406 I.P.C. vide order dated 17.10.2002.
Being aggrieved by the order dated 17.10.2002 passed by the 2nd Additional Civil Judge (Junior Division), Aligarh, accused preferred a Criminal Revision No. 720 of 2002 before the Additional Sessions Judge, Court No.14, Aligarh and the same was allowed by the Additional Sessions Judge, vide order dated 21.3.2003 and the order dated 17.10.2002 of the Magistrate was set aside by the Lower Revisional Court and the accused opp. party No.2 was discharged. Hence, the present revision has been preferred before this Court.
Learned counsel for the revisionist argued that the impugned order passed by the Lower Revisional Court is not in accordance with law as the lower Revisional Court has exceeded in its jurisdiction and has wrongly set aside the order passed by the Magistrate framing charge against the accused opp. party No.2 for offence under Section 406 I.P.C. as a prima facie case was made out against him in the opinion of the trial Court on the basis of the evidence recorded by it. Hence the impugned order should be set aside by this Court.
On the other hand, Sri Anil Srivastava, learned counsel for the opp. party No.2, has argued that the impugned order passed by the Lower Revisional Court discharging the accused opp. party for offence under Section 406 I.P.C. is in consonance with law and the Lower Revisional Court has rightly set aside the order of the Magistrate as admittedly no offence under Section 406 I.P.C. is made out against the accused. He further argued that assuming the version of the revisionist as narrated by her in her complaint, the basic ingredients of Section 406 I.P.C. is not fulfilled, hence the prosecution of the accused is wholly unwarranted, therefore, the order of the Lower Revisional Court does not call for any interference by this Court. In support of his contention he has placed reliance on the judgment of the Supreme Court reported in (2010)10SCC361 V.P. Srivastava Vs. Indian Explosives Ltd., in which it was held that " there is nothing in the complaint which may even suggest remotely that the IEL had entrusted any property to the appellants or that the appellants had dominion over any of the properties of the IEL, which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 I.P.C., punishable under Section 406 I.P.C."
The Apex Court quashed the proceedings against the appellants and further observed that "it was a fit case where High Court should have exercised its jurisdiction under Section 482 of the Code quashing the complaint against the appellants.
Sri Srivastava in support of his contention further placed reliance on the pronouncement of the Supreme Court reported in 2009 SCC (Cr)-1-947, All Cargo Movers India Pvt. Ltd. Vs. Dhanesh Badarmal Jain, wherein in paragraph Nos. 16 and 17 it was held that:
"16. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, this Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.
17. In G. Sagar Suri and Anr. Vs. State of U.P. And Ors. [(2000) 2 SCC 636, this Court opined:
"8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
Having considered the submissions advanced by the learned counsel for the parties. I have perused the impugned order dated 21.3.2003 passed by the Lower Revisional Court, wherein the Lower Revisional Court found that in the instant case the ingredients of Section 406 I.P.C was not found in order to show that there was any entrustment of property and it is a criminal breach. The Lower Revisioinal Court was of the view that in the instant case, the revisionist/complainant has not shown anything on record that her late brother H.C.Agarwal made any kind of entrustment to the accused, mere giving a cheque by the accused cannot be presumed that any entrustment of some money was made to the accused. Secondly, it should be a criminal breach whereas the representation case is simply a case of civil nature for recovery of the money. The Revisional Court from the statement of the revisionist recorded under Section 244 Cr.P.C. found that suit for recovery of money was not filed because the revisionist/complainant was not having sufficient court fees and hence Lower Revisional Court was of the opinion that criminal jurisdiction has been invoked just to save the civil court fees.
Moreover, the Lower Revisional Court found that even if the entire case of the revisionist/complainant is admitted and believed, it can be a case of recovery money of loan which does not come under the ambit of breach of trust which is the main ingredient of Section 406 I.P.C. Accordingly, the creditor and debtor does not come under the purview of Section 406 I.P.C.
It was further found by the Lower Revisional Court that the case also does not come under Section 138 of the Negotiable Instrument Act because admittedly it is time barred. The cheque was drawn on 21.6.1995 and as per the provisions of Negotiable Instrument Act, cognizance can not be taken after two years. The cheque was not presented even after four months because the brother of the revisionist/complainant died on 2.10.1995 in a road accident. It is evident from the record that she kept the cheque for four months, moreover, the cheque was not in the name of the revisionist/complainant Hem Garg, as such she cannot file a criminal case.
In my opinion, the view taken by the Lower Revisional Court does not suffer from any manifest error of law or any infirmity. The view taken by the Lower Revisional Court appears to be quite reasonable and just in the eyes of law. Moreover, as from the perusal of the complaint it is clear that the basic ingredients of Section 405 I.P.C. punishable under Sectiion 406 I.P.C. is not made out, hence the Lower Revisional Court has rightly discharged the accused for offence under Section 406 I.P.C. and set aside the order of the Magistrate framing charge for the said offence.
In view of the foregoing discussions, the impugned order passed by the Revisional Court does not call for any interference by this Court. The Criminal Revision lacks merit. It is liable to be dismissed and is, accordingly, dismissed.
Dated: 10th February, 2012 NS