JUDGMENT Shiv Shanker, J.
1. Criminal Misc. Writ Petition No. 6742 of 2006 (Suresh Kumar Modi v. State of U.P. and Ors.) and Criminal Misc. Writ Petition No. 6950 of 2006 (Mr. Amit Modi and Ors. v. State of U.P. and Ors.) have been filed regarding one criminal case, therefore, both the writ petitions are being disposed of by this common judgment. In both the writ petitions it has been prayed that issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report (hereinafter referred to as the F.I.R.) dated 10th May, 2006 lodged against the petitioner/s at Police Station Modi Nagar, District Ghaziabad as Case Crime No. 166 of 2006, under Sections 406 and 420 I.P.C.
2. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Counsel, assisted by Sri Udai Chandani and Sri Sikandar B. Kochar, learned Counsel appearing for the petitioner's and learned A.G.A. as well as the Sri Brijesh Sahai and Sri B.C. Rai, learned Counsel appearing for the respondent No. 4 and perused the records.
3. According to the petitioners, absolutely no offence of cheating in any manner whatsoever is made out against all the petitioners as the intention to cheat, which is necessary for the said offence, is totally lacking in the said case, which can be seen from the fact that an amount of Rs. 1 Crore has already been returned by the petitioner to the company of the respondent No. 4 by way of pay-order, which has been admitted in the F.I.R. It is further contended that the impugned F.I.R. has been lodged only for the purposes of harassing and falsely implicating the petitioners. Absolutely no legal formalities were done by the company of the respondent No. 4, who is alleging to have given the said loan to the petitioner. It is further contended that the said amount was paid to the petitioner's company only for the purposes of securing a deal for the transfer of 6,58,000 shares of Modi Pon Limited held by the company "Aspen Developers Private Limited", a group of companies of the petitioner, and when the said deal could not go through, the present false F.I.R. was lodged against the petitioner/s. It is further contended that malafides on behalf of the respondent No. 4 can further be seen from the fact that absolutely no security by way of assets, ownership papers or the signs of the guarantors was taken before giving the said amount to the petitioner's company. According to the petitioners, entire dispute is of civil nature and present F.I.R. has been lodged only for the purposes of coercing the petitioners into giving away the control of 81/2% shares of Modi Pon Limited, which are held by the Aspen Developers Private Limited. From the perusal of the F.I.R. itself it can be seen that the entire amount of Rs. 4,40,86,000/- has been paid by way of five consecutive cheques. The details of the cheques as mentioned in the F.I.R. are as under:
4. From, the aforesaid details of the cheques, it is clear that it started from 30.09.2004, 31.10.2004, 30.11.2004, 31.12.2004 and 31.01.2005, which goes to show that the total amount was paid to the petitioner's company in five instalments and over a period of five months and during which the company of the respondent No. 4 had ample opportunity of insisting on getting the loan papers prepared and on refusing to disburse the alleged loan. It is further contended that from the perusal of the balance-sheet dated 31.03.2005 of company of the respondent No. 4, namely, Status Mark Finvest Limited, it can very clearly be seen that absolutely no amount has been shown as loan instead of an amount of Rs. 4,51,40,745/- has been shown in the head "advance recoverable in cash or any kind for value to be received, which goes to show that the company of the respondent No. 4 was itself not treating the said amount of Rs. 4,40,86,000/- as a Joan, which further falsifies the prosecution story. Similarly, the allegation regarding payment of 18% interest on the loan amount by the petitioner is also false as in the balance-sheet dated 31.03.2005 no such amount has been shown by the company of the respondent No. 4 i.e. Status Mark Finvest Limited, which further falsifies the prosecution story.
5. It is further contended on behalf of the petitioners that the F.I.R. has been lodged at Police Station Modi Nagar, District Ghaziabad while all the five cheques, by which the alleged loan has been paid, were given by the company of the respondent No. 4 having its registered office in New Delhi to the petitioner's company, which is also having its registered office in New Delhi, and further the said cheques were also credited in the State Bank of Patiyala, Dariaganj Branch, New Delhi. Therefore, it is clear that not a single part of the entire transaction has taken place within the limits of Police Station Modi Nagar, District Ghaziabad.
6. It is further contended that entire dispute is of civil nature and only for the purpose of harassing and falsely implicating the petitioners it has been lodged against them. It is further contended that petitioners are apprehending their arrest at the hands of the respondent No. 3, who is trying to arrest the petitioners in pursuance of the impugned F.I.R., which would be an infringement of their fundamental rights to live and personal liberty enshrined under Article 21 of the Constitution of India. In support of his contentions learned Counsel appearing for the petitioners relied upon the G. Sagar Suri and Anr. v. State of U.P. and Ors. .W. Palanitkar and Ors. v. State of Bihar and Anr., 2006 (1) SCC (Cri) 746 Anil Mahajan v. Bhor Industries Ltd. and Anr., 2006 (2) SCC (Cri) 49 Uma Shankar Gopalika v. State of Bihar and Anr. and State of West Bengal and Ors. v. Swapan Kumar Guha and Ors., where in most of the cases the stage was of post-cognizance and the Court interfered in proceedings under Section 482 Cr.P.C., but here in the present case the stage is of pre-cognizance. However, it is a settled legal proposition that power under Article 226 of the Constitution of India should be exercised sparingly in the rarest of the rare case. Therefore, the petitioners can not get any benefit of the aforesaid judgments
7. On the other hand, learned Counsel for the respondents has urged that the said amount through five cheques was taken by the petitioners from the company of the respondent No. 4 on the pretext that the same shall be returned with 18% interest per annum, whenever it will be demanded, and it is on the assurance of the petitioner Suresh Kumar Modi, who is Director of the company, that the above cheques were given. No any papers regarding such loan was prepared by the Director of the company. Consequently, a notice under the Negotiable Instruments Act was transmitted through the Counsel to the petitioner's company by demanding the amount of loan etc., upon which one cheque for Rs. 1 Crore was sent to the respondent company, which was deposited in the account of the company in Delhi, but the same has dishonoured. Therefore, for saving himself from the legal consequences one pay-order for Rs. 1 Crore along with the papers regarding taking loan were transmitted to the company of the respondent No. 4 on 11.03.2006, but the rest of the amount was not paid by the company of the petitioner. It was a loan not the security, as argued on behalf of learned Counsel for the petitioners. It has been also urged that the said amount is also included in the balance- sheet of the company head "advance recoverable in cash or any kind for value to be received" and such loan was given by way of five cheques to the petitioner's company without taking any security but on the assurance of the Director of the company, namely, Sri Suresh Kumar Modi that all the papers will be executed and prepared later on as there is immediate need of money at this time. It was further argued that prima facie the offence of criminal breach of trust and cheating is made out on the basis of the facts mentioned in the F.I.R. lodged against the petitioners. It was further argued that agreement was made in between the Director of the petitioner's company and the respondent No. 4 at the head office of company of the respondent No. 4 i.e. Status Mark Finvest Ltd., Hapur Road, Modi Nagar, Ghaziabad. Under such circumstances, there will be no effect of transaction subsequently made in Delhi by issuing the cheques from the office of the petitioner's company situated at Delhi and received and deposited in the bank account of the respondent No. 4. Therefore, the Police Station Modi Nagar, District Ghaziabad has the territorial jurisdiction regarding the alleged occurrence. Hence, argument of the learned Counsel for the petitioners regarding the point of jurisdiction has no force. It was further contended that in order to constitute the offence of cheating the intention to deceive should be in existence at the time when the inducement was offered, unless the complainant showed that the accused has dishonest or fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under Section 420 I.P.C. and it may only amount to breach of contract. In the present case, the intention of the petitioner/s was to deceive from the very beginning consequently the amount was received and the same has not been returned as per the assurance given by the Director of the petitioner's company, therefore, the offence of criminal breach of trust and cheating are made out on the basis of the facts mentioned in the F.I.R. and as such it is not a case of civil nature. In support of his aforesaid contentions learned Counsel for the respondents placed reliance on 1999 (2) JIC 772 (SC) Trisuns Chemical Industry v. Rajesh Agrawal and Ors. 2004 SCC (Cri) 929 Anwar Chand Sab Nanadikar v. State of Karnataka and 2002 SCC (Cri) 129 S.W. Palanitkar and Ors. v. State of Bihar and Anr.
8. For ready reference, it is necessary to reproduce the relevant provisions i.e. Sections 405, 415 and 420 I.P.C. as under:
405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that 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 wilfully suffers any other person so to do, commits "criminal breach of trust."
Explanation (1) --A person, being an employer of an establishment whether exempted under Section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount for the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.--A person, being an employer, who deducts the employee's contribution from the wages payable to the employee for credit to the Employees State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
415. Cheating.-- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived 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, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
9. It is also worthwhile to mention here that Hindustan Housing Finance and Development Corporation Limited filed a civil suit, being Civil Suit No. 261 of 2006, against the Aspen Developers Private Limited (company controlled by the petitioners), Patiyali Flour Mills limited, petitioner Suresh Kumar Modi, Mr. Ravindra Manchanda, Director of Aspen Developers Private Limited, Modi Pon Limited and Stock Holding Corporation of India Limited for specific performance of the transaction dated 10.02.2006 of the sale and purchase of 6,58,000 equity shares of Rs. 10/- each of Modi Pon Limited. Copy of the plaint and copy of the written statement have been filed as Annexures-4 and 5 to the writ petition. In the said suit, which was filed in Delhi, Mr. K.K. Modi has moved an application for impleadment stating that M/S. Status Marks Finvest Limited (company of the respondent No. 4) is admittedly a company controlled by Sri M.K. Modi. The above suit was also filed for the same amount against the petitioners. At this stage, it can not be prima facie presumed that the said amount by way of five cheques was given as loan or as security, although the petitioner sent a letter by mentioning the fact regarding taking the loan from the respondent company, wherein the pay-order of Rs. 1 Crore was also sent.
10. Under such circumstances, in this matter it is essential that the investigation should be made so that clear picture can come regarding the alleged occurrence. Therefore, after collecting the whole evidence during the course of investigation the matter can be finalised regarding the alleged occurrence by way of filing a police report under Section 173 of the Code of Criminal Procedure. In further from the facts and circumstances it appears at least part of the cause of action arise within the local jurisdiction of police station Modi Nagar, District Ghaziabad, therefore, the Court of Ghaziabad has also the territorial jurisdiction regarding the alleged occurrence. Hence, the contention of the learned Counsel for the petitioners has no force regarding territorial jurisdiction.
11. In such circumstances, the impugned F.I.R. is not liable to be quashed under Article 226 of the Constitution of India.
12. However, both the above writ petitions can be disposed of by confirming the interim order/s that till the submission of charge-sheet/final report the arrest of the petitioner/s in Case Crime No. 166 of 2006, under Sections 406/420 I.P.C., Police Station Modi Nagar, District Ghaziabad shall remain stayed, provided the petitioners cooperate with the investigation.
Amitava Lala, J.
13. I am agreeable with the view point of Learned brother. However, I want to add few lines in support of the judgment. Since in the State of Uttar Pradesh remedy of anticipatory bail is not available, large number of writ petitions are being filed for the purpose of having an order of quashing the first information report and not to arrest the petitioner at the pre-cognizance stage. Therefore, the Court has to go by the prima facie case and be extremely cautious about the hidden cause, if any, in the garb of prayer of quashing the first information report. Normally the writ court should not quash the first information report only on the probabilities. It is well known that in the rarest of the rare case order of quashing first information report will be passed. In addition to the judgments considered by His Lordship (Shiv Shanker, J.), the judgment reported in 2006 (2) SCC (Cri) 430 Murari Lal Gupta v. Gopi Singh also arose at a post-cognizance stage. Such ratio can not at all be made applicable at a pre-cognizance stage, otherwise the Court will be flooded with such type of litigations. A Full Bench of the Allahabad High Court in 1987 (24) ACC 164 Ashok Kumar Dixit v. State of U.P. and Anr. already held that scope of interference with the criminal proceedings under Article 226 of the Constitution is narrower than Section 482 Cr.P.C. We are aware that the power of the High Court under Article 226 of the Constitution is unfettered but High Court in its wisdom controls it. In the instant case, the dispute arose as to whether criminal breach of trust will be existable or not. It is a matter of enquiry and investigation by the police. We can not restrain enquiry or investigation to be conducted by the police authority. As per the ratio of 2003 SCC (Cri) 129 (supra), mens rea is a necessary ingredient for criminal breach of trust. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well. In further as per the ratio of 2004 SCC (Cri) 929 (supra), as the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime. Moreover, only because of the act has a civil profile, it will not be sufficient to denote the criminal outfit, if any, unless, of course, an appropriate report has been filed by the independent agency i.e. police authority.
14. However, so far as arrest is concerned, unless the crime is heinous in nature, we normally regulate the arrest in proportion on the available facts and circumstances due to non-availability of alternative remedy of anticipatory bail in the State. Therefore, when question of quasi civil dispute has been raised, passing of the following order can not be said to be unmindful application on our part and accordingly passed:
The Investigating Officer of Case Crime No. 166 of 2006, under Sections 406 and 420 I.P.C., Police Station Modi Nagar, District Ghaziabad will conclude the investigation within a period of three months from the date, on which a certified copy of this order is presented before him. The petitioners are directed to co-operate with the Investigating Officer in all possible manner. If the Investigating Officer or informant found himself aggrieved due to falsification, misstatement, fraud, non-cooperation with the Investigating Officer or any other reasons whatsoever relevant for the purpose, he is at liberty to apply for recalling/ variation/ vacating/ modification of the order.
15. However, the petitioners will not be arrested in the above mentioned case crime number till the submission of the charge-sheet/final report, if any.
16. Accordingly, the writ petitions stand disposed of.
17. However, no order is passed as to costs.