Court No. - 34
1. Case :- APPLICATION U/S 482 No. - 5761 of 2002
Applicant :- Vineet Chand Rai And Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Samit Gopal,G.S. Chaturvedi
Counsel for Opposite Party :- Govt. Advocate,Gaurav Kakkar,J.P.S. Chauhan,R.P.Rathore
Alongwith
2. Case :- APPLICATION U/S 482 No. - 7088 of 2002
Applicant :- Vineet Chand Rai And Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Samit Gopal,G.S. Chaturvedi
Counsel for Opposite Party :- Govt. Advocate,Gaurav Kakkar,J.P.S. Chauhan
Hon'ble Sudhir Agarwal,J.
1. Heard Sri G.S.Chaturvedi and Sri Samit Gopal, Senior Advocates, assisted by Sri Prashant Vyas, learned counsels for applicants and learned A.G.A. for State of U.P. in both the matters. None has appeared on behalf of opposite party 2 though name of Sri Gaurav Kakkar, Sri J.P.S. Chauhan and Sri R.P.Rathore, Advocates have been shown in cause list from the side of opposite party. Hence I proceed to decide both these applications after hearing Sri Chaturvedi, Senior Advocate, for applicants and learned A.G.A. for State.
2. Criminal Misc. Application No.5761 of 2002 (hereinafter referred to as “CMA-1”) under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) has been preferred by seven applicants namely Vineet Chand Rai, Chairman, Sunil Kumar Rastogi, Director, Jogesh Nayar, Managing Director, O.B.Vijayan, General Manager, and Sandeep Sharma, Regional Manager of M/s Koshika Telecom Ltd., with the prayer to quash proceedings of Case No.627 of 2002 (Rajiv Kumar vs. Vineet Chand Rai and others) pending in the Court of Civil Judge (Junior Division)/Magistrate, Bijnor, under Sections 406, 409, 420 IPC relates to Police Station Najibabad, District Bijnor. Applicants have also challenged order dated 30.4.2002 passed by Magistrate summoning applicants for trial under Sections 406, 409, 420 IPC.
3. Criminal Misc. Application No.7088 of 2002 (hereinafter referred to as “CMA-2”) has also been filed by Vineet Chand Rai, Chairman, Varun Rai, Director, Vinay Rai, Director, Jogesh Nayar, Managing Director, D.B.Vijayan, General Manager, and Sandeep Sharma, Regional Manager, Koshika Telecom Ltd., with the prayer to quash proceedings of Case No.822 of 2002 Singhal Refineries vs. Vineet Chand Rai and others, under Sections 406, 409, 420 IPC, Police Station Najibabad, District Bijnor pending in the Court of Civil Judge, Ist Class, Najibabad, Bijnor. Applicants have also challenged order dated 14.6.2002 whereby they have been summoned by Magistrate for trial under Sections 406, 409, 420 IPC.
4. Since broadly facts involved in both the matters and question of law, in general, are similar in both the matters, therefore, both have been heard together and are being decided by this judgment.
5. In CMA-1 Rajiv Kumar opposite party 2, Complainant, filed complaint dated 18.4.2002 and entire allegations contained in the complaint read as under :
^^1- ;g fd izkFkhZ@ifjoknh vfHk;qDr dh dEiuh dksf'kdk Vsyhdke fy0 ftlus fd Å"kk Qksu ds uke ls if'peh m0iz0 eas ekckbs y lY;s yw j Qkus lsok miyC/k djkus dk vk'oklu o cpu fn;k Fkk] dk miHkksDrk gSA
2- ;g fd vfHk;qDr us lekpkj i= o vU; ek/;ekas ls eksckby lsY;wyj Qksu lsok miyC/k djkus gsrq foKkiu izdkf'kr djk;s rFkk ifjoknh dks ;g fo'okl fnyk;k fd og 'kh?kz vfr 'kh?kz uthckckn eas Hkh eksckby Qkus loks miyC/k djk;asxs rFkk blds okLrs vko';d Vkoj vkfn miyC/k djk;asxsA
3- ;g fd ifjoknh us vfHk;qDr dEiuh ds foKkiu ij fo'okl djrs gq, fnukad 2-2-1998 dks 4310@& :i;s crkSj tekur jkf'k o vU; pktZ tek dj fle dkMZ la0 27064 izkIr fd;k rFkk vfHk;qDr dEiuh }kjk ifjoknh dks 9836007261 uEcj vkoafVr fd;k x;kA
4- ;g fd vfHk;qDr dEiuh u s dHkh Hkh uthckckn {k s= e sa viuh l sok; sa iznku ugh a dh rFkk ifjoknh d s dgus ij dk sb Z /;ku ugh a fn;k bl rkSj ij vfHk;qDr u s ifjoknh d s lkFk /kk s[kk/kMh dh gSA
5- ;g fd blds i'pkr vfHk;qDr dEiuh us viuh dEiuh dks lsok;as fcuk fdlh iwoZ lwpuk ds cUn dj nh rFkk ifjoknh dks mldh tekur jkf'k o vU; pktZ eq0 4310@& :i Hkh okil ugh a dhA
6- ;g fd ifjoknh us fnukad dks vfHk;qDr dks ,d uksfVl bl ckor fn;k rFkk fnukad dks iqfyl v/kh{kd egksn; fctukSj dks Mkd }kjk lwpuk nh ijUrq vfHk;qDr }kjk uk gh ifjoknh dh tekur jkf'k okfil dh x;h rFkk u gh lsok;as miyC/k djk;h x;hA
7- ;g fd ifjoknh dh tekur jkf'k vfHk;qDr ds ikl crkSj vekur Fkh rFkk vfHk;qDr us ifjoknh dks /kks[kk nsdj ifjoknh ls jde olwy dh rFkk viuh lsok;as miyC/k ugha djk;hA
8- ;g fd ifjoknh ds lkFk lkFk vfHk;qDr }kjk uthckckn {ks= ds vU;
miHkksDrkvksa ds lkFk /kks[kk/kMh ,oa vekur eas [;kur dh x;h gSA vfHk;Drq }kjk ckj ckj vk'oklu fn;s tkus ds dkj.k vc rd ifjokn nk;j ugha fd;k x;kA 9- ;g fd vfHk;qDr dks mlds mDr d`R; gsrq ltk feyuh t:jh gSA vr% vuqjks/k gS fd vfHk;qDr dks vUrxZr /kkjk 406] 409] 420 vkbZ0ih0lh0 ryc Qjek;k tkdj ltk nh tkos] d`ik gksxhA** “1. That the applicant/complainant is consumer of accused company Koshika Telecom Ltd., which had given assurance & undertaking for providing mobile cellular services in western U.P. in the name of Usha Phone.
2. That the accused published advertisement in newspaper & by other modes for providing cellular phone service, and the complainant was made to believe that mobile phone service would very soon be provided in Najibabad as well, and necessary towers etc. for the same shall also be installed.
3. That on believing the advertisement of the accused company, the complainant deposited Rs.4310/- on 2.2.1998 as security deposit & other charges and got SIM Card No.27064, and the accused company allotted 9836007261 number to the complainant.
4. That the accused company never provided its services in Najibabad area, and did not pay attention to complainant's requests. Accordingly, the accused committed fraud with the complainant.
5. That, thereafter, the accused company discontinued its services without any prior notice, and did not even return the security deposit & other charges amounting to Rs.4310/- , to the complainant.
6. That a notice to said effect was given by the complainant to the accused on...., and by post to the Superintendent of Police, Bijnor on …., but the accused neither returned the security amount to the complainant nor provided the services.
7. That the security amount of the complainant was in form of deposit and the accused duped the complainant & took the amount from him, and did not provide its services.
8. That besides the complainant, the accused has committed fraud & breach of trust with other consumers of Najibabad area. On account of repeated assurances by the accused, the complaint has not been filed till date.
9. That the accused deserves to be punished for the above act.
It is, therefore, requested that the accused may kindly be summoned and punished u/s.406, 409, 420 I.P.C.”
(English Translation by Court)
6. Magistrate recorded statement of Rajiv Kumar under Section 200 Cr.P.C. and thereafter passed order dated 30.4.2002 summoning applicants for trial under Sections 406, 409, 420 IPC.
7. In CMA-2 Complainant M/s Singhal Refineries vide complaint dated 30.06.2002 filed before Judicial Magistrate, First Class, Najibabad made following allegations against applicants with the request that applicants be summoned for trial under Sections 406, 409, 420 IPC. Allegations contained in complaint in its entirely reads as under :
^^1- ;g fd izkFkhZ @ ifjoknh vfHk;qDr dh dEiuh dksf'kdk Vsyhdke fy0 ftlus fd Å"kk Qksu ds uke ls if'peh mRrj izns'k eas ekcks by lY;s yjw Qkus lsok miyC/k djkus dk vk'oklu o cpu fn;k Fkk] dk miHkksDrk gSA
2- ;g fd vfHk;qDr us lekpkj i= o vU; ek/;ekas ls eksckby lY;s yjw Qkus lsok miyc/k djkus gsrq foKkiu izdkf'kr djk;s rFkk ifjoknh dks ;g fo'okl fn;k fd og 'kh?kz vfr 'kh?kz uthckckn eas Hkh eksckby Qkus lsok miyC/k djk;xsa s rFkk blds okLrs vko';d Vkoj vkfn miyC/k djk;asxsA
3- ;g fd ifjoknh us vfHk;qDr dEiuh ds foKkiu ij fo'okl djrs gq, fnukad 30-12-1997 dks 3260@& :i;s crkSj tekur jkf'k o vU; pktZ tek dj fle dkMZ la0 27051 izkIr fd;k rFkk vfHk;qDr dEiuh }kjk ifjoknh dks 9836007325 uEcj vkoafVr fd;k x;kA
4- ;g fd vfHk;qDr dEiuh us dHkh Hkh uthckckn {k s= e sa viuh l sok; sa iznku ugh a dh rFkk ifjoknh ds dgus ij dk sb Z /;ku ugh a fn;k bl rkSj ij vfHk;qDr u s ifjoknh d s lkFk /kk s[kk/kMh dh gSA
5- ;g fd blds i'pkr vfHk;qDr dEiuh us viuh dEiuh dh lsok;sa fcuk fdlh iwoZ lwpuk ds cUn dj nh rFkk ifjoknh dks mldh tekur jkf'k o vU; pktZ eq0 3260@& :i Hkh okil ugh a dhA
6- ;g fd ifjoknh us vfHk;qDr dks ,d uksfVl bl ckor fn;k rFkk iqfyl v/kh{kd egksn; fctukSj dks Mkd }kjk lwpuk nh ijUrq vfHk;qDr }kjk u gh ifjoknh dh tekur jkf'k okfil dh x;h rFkk u gh lsok;sa miyC/k djk;h x;hA
7- ;g fd ifjoknh dh tekur jkf'k vfHk;qDr d s ikl crkSj vekur Fkh rFkk vfHk;qDr u s ifjoknh dk s /kk s[kk n sdj ifjoknh l s jde olwy dh rFkk viuh l sok; sa miyC/k ugh a djk;hA
8- ;g fd ifjoknh ds lkFk &2 vfHk;qDr }kjk uthckckn {ks= ds vU;
miHkksDrkvksa ds lkFk /kks[kk/kMh ,oa vekur eas [k;kur dh x;h gSA vfHk;Drq }kjk ckj ckj vko'oklu fn;s tkus ds dkj.k vc rd ifjokn nk;j ugha fd;k x;kA 9- ;g fd vfHk;qDr dks mlds mDr d`R; gsrq ltk feyuh t:jh gSA vr% vuqjks/k gS fd vfhk;qDr dks vUrxZr /kkjk 406] 409] 420 vkbZ0ih0lh0 ryc Qjek;k tkdj ltk nh tkos] d`ik gksxhA** “1. That the applicant/complainant is consumer of accused company Koshika Telecom Ltd., which had given assurance & undertaking for providing mobile cellular services in western U.P. in the name of Usha Phone.
2. That the accused published advertisement in newspaper & by other modes for providing cellular phone service, and the complainant was made to believe that mobile phone service would very soon be provided in Najibabad as well, and necessary towers etc. for the same shall also be installed.
3. That on believing the advertisement of the accused company, the complainant deposited Rs.3260/- on 30.12.1997 as security deposit & other charges and got SIM Card No.27051, and the accused company allotted 9836007325 number to the complainant.
4. That the accused company never provided its services in Najibabad area, and did not pay attention to complainant's requests. Accordingly, the accused committed fraud with the complainant.
5. That, thereafter, the accused company discontinued its services without any prior notice, and did not even return the security deposit & other charges amounting to Rs.3260/- , to the complainant.
6. That a notice to said effect was given by the complainant to the accused, and by post to the Superintendent of Police, Bijnor, but the accused neither returned the security amount to the complainant nor provided the services.
7. That the security amount of the complainant was in form of deposit and the accused duped the complainant & took the amount from him, and did not provide its services.
8. That besides the complainant, the accused has committed fraud & breach of trust with other consumers of Najibabad area. On account of repeated assurances by the accused, the complaint has not been filed till date.
9. That the accused deserves to be punished for the above act.
It is, therefore, requested that the accused may kindly be summoned and punished u/s.406, 409, 420 I.P.C.”
(Emphasis added) (English Translation by Court)
8. It is contended that treating allegations in the complaint to be true, it cannot be said that all the ingredients of Sections 406, 409, 420 IPC are satisfied hence Magistrate in summoning applicants had committed manifest illegality and impugned order is wholly without jurisdiction. Sri G.S.Chaturvedi, learned Senior Counsel further contended that while summoning all the applicants, Magistrate has not applied its mind as to how all applicants can be said to be responsible for working and day to day functioning of M/s Koshika Telecom Ltd. so as to justify summoning of all applicants and this also shows a total non application of mind on the part of Magistrate in passing summoning order hence for this reason also impugned summoning orders are liable to be set aside in both the matters.
9. Two questions up for consideration in both the applications are :
(i) If allegations contained in complaint, if taken to be true, whether, ex facie, offence under Sections 406, 409, 420 IPC is made out?
(ii) Whether Magistrate in summoning all applicants, has applied its mind regarding their involvement and summoning for the offenses in question?
10. Section 420 is “cheating” which is defined in Section 415 and both these provisions read as under:
“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 de- ceived 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.”
11. In order to attract allegations of “cheating”, following things must exist:
(i) The person deceived, delivered to someone or consented that certain person shall retain property.
(ii) Person deceived was induced by accused to do as above.
(iii) Such person acted upon such inducement and consequently was deceived by the accused.
(iv) Accused acted fraudulently or dishonestly.
(v) Accused did it intentionally.
(vi) such act or omission caused or likely to cause damage or harm to that person in body, mind, property or reputation.
(Emphasis added)
12. Then in order to attract Section 420 I.P.C., essential ingredients are:
(i) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
13. In Mahadeo Prasad Vs. State of West Bengal, AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
14. In Jaswantrai Manilal Akhaney Vs. State of Bombay, AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
15. In G.V. Rao Vs. L.H.V. Prasad and others, 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
16. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, 2000(4) SCC 168 Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
17. In S.W. Palanitkar and others Vs. State of Bihar and another, 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
18. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
“Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person 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, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.”
(Emphasis added)
19. In Devender Kumar Singla Vs. Baldev Krishan Singh 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
20. In Indian Oil Corporation Vs. NEPC India Ltd., 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
21. Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, 1999(3) SCC 259 and held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.
22. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
23. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in Sh. Suneel Galgotia and another Vs. State of U.P. and others 2016 (92) ACC 40.
24. Looking to allegations made in complaint and in the light of exposition of law in respect of Section 420 IPC, as discussed above, I find that complainant himself has given jwellary to accused-applicant mortgaging the same as security for advancing loan of Rs.10,000/- on an interest of 18% per annum. He further says that on 30th April 2006 he went to accused-applicant with due money but accused-applicant said that accounting of interest is made in March and since payment was not made after March, jwellary have been sold. The basic ingredients of Section 420 read with 415 IPC i.e. dishonest inducement to person so deceived to deliver any property is clearly absent.
25. Once necessary ingredient is absent, offence under the said provision cannot be made out. In R.K. Vijayasarathy and others vs. Sudha Seetharam and others 2019(3) SCALE 563 in the similar circumstances Supreme Court has held that condition necessary for an act to constitute an offence under Section 415 IPC is that there was dishonest inducement by the Accused otherwise such offence is not made out.
26. There is nothing on the face of record to indicate that Accused- applicants dishonestly induced Complainant to deliver any property to him. In the circumstances, proceedings against Accused-applicant under Section 420 IPC is illegal and gross abuse of process of law.
27. Now, I come to Section 406 and 409 IPC, which also I do not find are attracted in the case in hand. Both the provisions talk of punishment for “criminal breach of trust” which is defined in Section 405 I.P.C. and both these provisions read 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 estab- lishment 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 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 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 employees’ 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, 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.”
“406. Punishment for criminal breach of trust.
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
28. “Criminal breach of trust” talks of entrustment of property and dishonest misappropriation or conversion thereof for own use or dishonest use or disposal of property in violation of any direction of law prescribing mode in which property in which such trust is to be discharged, or of any legal contract by a person who has contravened the said provision.
29. In order to attract Section 405 IPC, not only entrustment with property, or entrusment with dominion over property is necessary but allegations should also show that person Accused dishonestly misappropriated or converted to his own use that property or dishonestly used or disposed of that property or willfully suffer any other person to do so and that such misappropriation, conversion, use or disposal is in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching discharge of such trust.
30. Construing Section 405 IPC in R.K.Vijayasarathy and others (supra) Court said :
“Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.”
31. Complaint in the case in hand nowhere shows that there was any contravention of direction of law prescribing the mode in which trust was to be discharged or that there was any otherwise legal contract which has been violated. There is no averment that complainant had specific condition regarding repayment which has been violated by Accused-applicants. Thus, necessary ingredients of Section 405 IPC are also not satisfied. Hence, proceedings under Sections 406 and 409 IPC are also illegal and amounts of gross abuse of process of law.
32. I therefore, answer question (i), formulated above, in favour of applications.
33. Now I come to question (ii). It is evident from bare reading of complaint that allegations made against M/s Koshika Telecom Ltd., a Company licenced to provide Cellular Phone Services and advertisement made by it. From paras 3, 4 and 5 in both the complaints it is evident that it is Company, which is mainly accused of alleged offence but Company has not been made an accused at all.
34. Term “Person” has been denied under Section 11 IPC and reads as under :
“Person”- The word “person” includes any Company or Association or body of persons, whether incorporated or not.”
35. When offence has been committed by Company and Company is not one of the accused, learned A.G.A. could not explain as to how without making Company accused, Director and other office bearers of Company can be made accused. Therefore, proceedings against applicants in respect of offence alleged to have been committed by M/s Koshika Telecom Ltd. is clearly erroneous, illegal and amounts to gross abuse of process of law. Hence proceedings in both the applications cannot allowed to continue.
36. In the result, both the applications are allowed. Proceedings of Case No.627 of 2002 (Rajiv Kumar vs. Vineet Chand Rai and others) and Case No.822 of 2002 (Singhal Refineries vs. Vineet Chand Rai and others), under Sections 406, 409, 420 IPC, Police Station Najibabad, District Bijnor pending in the Court of Civil Judge (Junior Division)/Magistrate, Bijnor and Civil Judge, Ist Class, Najibabad, Bijnor respectively, are hereby quashed.
Order Date :- 29.11.2019 KA