Ashok Sharma vs State Of Assam And Anr

This criminal petition under Section 482, Code of Criminal Procedure, 1973 (‘the Code’ and/or ‘the CrPC’, for short) is filed seeking

quashing of the criminal proceeding arising out of the First Information Report (FIR) lodged on 28.01.2010, which has been registered as Dergaon

Police Station Case no. 47/2019 for offences under Sections 406/420, Indian Penal Code (IPC).

Heard Mr. M. Biswas, learned counsel for the petitioner and Ms. S. Jahan, learned Additional Public Prosecutor for respondent no. 1, State of

Assam. None has appeared for the respondent no. 2 today on call. When the case was listed on 22.05.2020, none had appeared for the respondent no.

2 on that occasion also. It is revealed from the records that notice had been duly served on respondent no. 2 and names of learned counsel

representing respondent no. 2 are also reflected in the cause-list. In such fact situation, this criminal petition is taken up for consideration.

Mr. Biswas, learned counsel for the petitioner, by referring to the contents of the FIR, has submitted that the statements and accusations made in

the FIR do not disclose any of the ingredients for either the offence of cheating or the offence of criminal breach of trust. He has submitted that the

accusations, in essence, are only to the effect that the petitioner had failed to return back the amount he had borrowed from the respondent no. 2.

Ms. Jahan, learned Additional Public Prosecutor has submitted that a reading of the FIR does not reveal any kind of deception.

I have heard the learned counsel for the parties and also perused the contents of the FIR. Before any dilation on the submissions made on behalf of

the learned counsel for the parties, it is apt to refer to the statements and accusations made in the FIR.

The FIR at issue was submitted by the respondent no. 2 before the Superintendent of Police, Golaghat on 22.01.2019 and the same stood forwarded

to the Officer In-Charge, Dergaon Police Station by the Superintendent of Police, Golaghat by a communication dated 23.01.2019 with the direction to

take necessary legal action. On receipt of the same, the Officer In-Charge, Dergaon Police Station registered a case as Dergaon Police Station Case

no. 47/2019 for offences under Sections 406/420, IPC.

In the FIR, the respondent no. 2 had mentioned that the petitioner had asked her for an amount of Rs. 1,80,000/- about 2 years before to overcome

his financial hardship with the assurance to return the same at a later date. On such request, the respondent no. 2 stated to have given him the amount

of Rs. 1,80,000/- in installments through transfers from her bank account no. 10758041305 maintained at State Bank of India to the account no.

33136092096 maintained by the petitioner also at State Bank of India. It was alleged by the respondent no. 2 that when she asked the petitioner to

return the money sometimes over telephone and sometimes through messenger, the petitioner did not pay the same and tried to delay the payment on

one pretext or another. It was further mentioned that the respondent no. 2 had served legal notice on the petitioner. The legal notice dated 30.08.2018

sent by the respondent no. 2 through her learned advocate is annexed with this petition. It was contended that though the petitioner had received the

legal notice but he did not make the payment.

On the other hand, Section 405, IPC defines criminal breach of trust and punishment for committing criminal breach of trust is prescribed in Section

406, IPC. Section 405, IPC and Section 406, IPC read as under :-

Criminal breach of trust.â€"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 trustâ€​.

Punishment for criminal breach of trust.â€"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.

While Section 415, IPC defines cheating, Section 420, IPC defines cheating and dishonestly inducing delivery of property. Section 415, IPC and

Section 420, IPC read as under : -

Cheating.â€"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 “cheatâ€​.

Explanation.â€" A dishonest concealment of facts is a deception within the meaning of this section.

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.

The ingredients which constitutes the offence of criminal breach of trust are (1) A person shall be entrusted with property or with any dominion

over property, (ii) that person on whom property is entrusted; (a) dishonestly misappropriates or converts that property to his own use; or (b)

dishonestly uses or disposes of that property or wilfully suffers any other person so to do in violation (i) of any direction of law prescribing the mode in

which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust. On the other hand, the ingredients of the

offence of cheating are : (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be

induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be

intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b), the

act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

There is a distinction between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of

inducement which may sometimes be judged by his subsequent conduct also but such subsequent conduct alone is not the sole test. Mere breach of

contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown to be in existence right at the beginning

of the transaction, that is, the time when the offence is said to be committed. Thus, it is the intention of the accused which is the gist of the offence.

To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his

mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made a promise cannot be presumed. To

deceive is to induce a person to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. It is

not every breach of trust which results in an offence of criminal breach of trust. To term an act as criminal breach of trust, there shall be entrustment

and there shall be evidence of dishonest misappropriation.

Keeping the aforesaid principles into consideration, if the FIR at issue is examined, it is not the case of the respondent no. 2 that the petitioner had

obtained the amount by any fraudulent or dishonest intention or by wilful misrepresentation. It is difficult to infer an element of deception on the part of

the accused in the case in hand when he sought for the amount of Rs. 1,80,000/-. A set of facts may give rise to a civil wrong; or a criminal offence;

or a civil wrong as well as a criminal offence. Sometimes, a contractual obligation, apart from furnishing a cause of action for seeking remedy for a

civil wrong may also involve a criminal offence. The nature and scope of a civil proceeding is different from a civil proceeding. A mere failure on the

part of an accused to return an amount he had borrowed from the informant, for which a civil remedy is available, does not by itself give rise to a

cause of action for initiation of criminal prosecution. The test is whether the accusations in the FIR disclose a criminal offence or not. Upon

consideration of the accusations made in the FIR where the accusations, in essence, was with regard to the failure on the part of the accused

petitioner to return the borrowed amount the same could not mean that he had cheated the informant. There was no allegation as to any inducement

on the part of the accused and intention to cheat the respondent no. 2 from the very beginning. Grant of loan to a known person cannot be equated

with entrustment. On perusal of the legal notice dated 30.08.2018, it clearly shows that the petitioner and the respondent no. 2 had friendship for a

number of years and when the petitioner sought monetary help, the respondent no. 2 had extended such monetary help. No allegation as regards any

inducement on the part of the petitioner at the time of seeking such monetary help was alleged in the said legal notice.

The inherent jurisdiction of this Court available under Section 482 of the Code envisages three situations, namely for exercise of such powers, (i)

to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. The inherent

powers though very wide, have to be exercised only in appropriate cases for the purpose of doing real and substantial justice and the powers must be

exercised with caution. The wide powers available under Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The Court

while exercising powers under Section 482, CrPC does not function as a court of appeal or revision. While exercising jurisdiction under Section 482 of

the Code, the Court is not supposed to undertake an exercise to find out the correctness of the allegations in an FIR/complaint and it does not embark

upon an enquiry as to the reliability, genuineness, etc. or otherwise of the accusations made in the FIR/complaint. The primary test is whether the

statements and allegations made in the First Information Report/complaint even after accepting them as true, disclose a cognizable offence or not.

The situations where such inherent jurisdiction can be exercised have been well settled in a catena of decisions of the Supreme Court and this

Court. In State of Haryana vs. Bhajan Lal, reported in 1992 Supp. (1) SCC 33,5 the Supreme Court has laid down seven categories of cases, by way

of illustration, in which the inherent powers under Section 482 of the Code can be exercised in an appropriate case, as under :-

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by

this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of

the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could

be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down

any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of

cases wherein such power should be exercised.

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their

entirety do not prima-facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is

permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the Court to act according to its whim or caprice.

Having considered the parameters laid down for exercise of the inherent jurisdiction of this Court and the fact situation obtaining in the case in

hand, this Court is of the unhesitant opinion that this case clearly falls in the category (1) as enumerated in Bhajan Lal (supra). Thus, initiation and

continuance of the criminal proceeding arising out of the FIR lodged in connection with Dergaon Police Station Case no. 47/2019 would amount to

abuse of the process of the Court. It transpires that the criminal prosecution has been initiated only in order to coerce the petitioner to make payment

of the borrowed amount, thus, trying to give criminal colour to a civil wrong. In such view of the matter, the FIR lodged in connection with Dergaon

Police Station Case no. 47/2019 is hereby quashed. The petitioner is treated to be discharged of the offences alleged against him. This criminal petition

is, therefore, allowed. There shall, however, be no order as to cost.