Court No. - 49
Case :- APPLICATION U/S 482 No. - 4842 of 2005 Applicant :- Prahlad Kumar Gupta And Others Opposite Party :- State Of U.P.& Another Counsel for Applicant :- Siddhartha Srivastava Counsel for Opposite Party :- Government Advocate
Hon'ble Saumitra Dayal Singh,J.
List has been revised. None is present on behalf of the opposite party to oppose this application.
The present 482 Cr.P.C. application has been filed with a prayer to quash the charge sheet dated 27.1.2005 in Case Crime No. Nil of 2004, under Section 420 IPC and Sections 58A and 58B of Company's Act and further proceeding in Case No. 294 of 2005 (State Vs. Prahalad Kumar Gupta and others), pending before C.J.M. Budaun.
Learned counsel for the applicants submits that the dispute between the parties was purely civil in nature with respect to the failure of the applicant to redeem the money deposited by the opposite party with the Finance Company by the M.L. Brothers Higher Company Pvt. Ltd., in which the applicant nos. 1, 2, 3 and 4 were directors.
It has been stated by Sri Siddhartha Srivastava, learned counsel for the applicants that the applicant nos. 1, 2 and 3 are since dead. In respect of the applicant no.4, it has been submitted that though he was a minor in the year 1997, however, even against him no offence has been made from a plain reading of the FIR inasmuch as it clearly reads that the opposite party had deposited Rs. 10,20,000/- with the aforesaid company by way of a term deposit at 15% interest, on 22.4.1997. The FIR further narrates that the said term deposits were renewed on 22.4.2000, 14.4.2000 and 19.6.2000 for a further period of three years. It has been then alleged that the applicants did not redeem the maturity amount of those deposits to the opposite party on 30.6.2003 in terms of the contract.
On such allegations made in the FIR and similar material coming on the record, a charge sheet has been submitted under Section 420 read with Section 58A and 58B of the Companies Act, 1956.
In so far as the offence alleged under Section 420 IPC is concerned, learned counsel for the applicant submits no offence is made out.
Treating the FIR allegations to be true, it is seen, for an offence under Section 420 IPC, the necessary ingredients would (in view of Section 415 IPC), be ‘inducement’, by practicing deception or fraudulent or dishonest means; at the time when the property (in respect of which the offence of cheating is alleged), was handed over to the accused. The Supreme Court in Inder Mohan Goswami and another Vs. State of Uttaranchal and others 1, it was held as below:
“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 a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.”
Thus, in the admitted facts of the case that the opposite party had deposited the money with the company (in which the applicants were directors) to earn interest and in view of the further admission that the term of such money deposit was got renewed by the opposite party, of their own, in year 2000, no allegation of fraudulent or dishonest intention on part of the applicants can be said to be made out with reference to the the 1 (2007) 12 SCC 1 time when the deposit was received by them. The subsequent failure on their part to keep the promise to redeem the deposit to the opposite party cannot raise a culpable intention to break the promise from the beginning.
So far as offences alleged under Sections 58A and 58B of the Companies Act, 1956 are concerned, apparently, in view of section 621 of that Act, only complaint case procedure could have been followed in accordance with the prescription made under that law and the FIR could never have been lodged directly by the opposite party disclosing commission of such offence. The impugned charge sheet suffers from a fundamental and incurable defect.
In view of the above, the application is allowed. The aforesaid charge sheet and further proceeding in Case No. 294 of 2005 (State Vs. Prahalad Kumar Gupta and others), pending before C.J.M. Budaun, are hereby quashed.
Order Date :- 26.2.2018 Mini