Ghansham Dass vs State of Haryana

B.S. Nehra, J.—This order will dispose of Criminal Misc. Nos. 162,-M, 164-M and 166-M of 1989, as the relief claimed in all these three cases is for quashment of the charges framed against the petitioner, who is common in all the three cases, on the basis of common FIR No. 157 dated 14-4-1987. However, charge-sheets were framed separately in respect of identical transactions, which took place in the years 1984, 1985 and 1986 relating to the aforesaid three cases, respectively.

The facts of the case are that FIR No. 157 dated 14-4-1987 was registered at the instance of Harbans Singh in Police Station City Yamuna Nagar District Ambala, to the following effect :--

I am a resident of Vishnu Nagar, Yamuna Nagar and am employed in railway workshop, Jagadhari. Shri Ghansham Dass son of Des Raj is also a resident of Vishnu Nagar and runs a Karyana shop, known as Bindu Karyana Store. He enrolled many persons of the city as members in the committees privately run by him. He has different groups of members of the committees varying from 30 to 35 members, who invest different amounts in different committees. I know Shri Krishan Lal Arora, Sh. Jagjit Singh, Sh. Shital Sharma, Amar Singh and Kishan Chand Sharma and others. Ghansham Dass has been carrying on in the investment and disbursement concerning the committees since long and has got confidence reposed in him by other members. He used to have the first committee himself without any auction. If any member later on wanted to purchase the auction for a lessor amount, then he (Ghansham Dass) used to deduct Rs. 25/- as commission, out of the profit from every member and the rest amount of profit was disbursed by him in equal shares to all the: members. It is the duty of Ghansham Dass to: collect amounts from the members and to disburse the same to them. Seeing others, I also got myself enrolled as a member of two committees by investing Rs. 150/- (first committee) from May, 1985, and Rs. 200/- (second committee) in August, 1985, and the committees were functioning well. I have already invested 15 committees of Rs. 150/-per month and 11 committees of Rs. 200/- per month. When in the month of August, 1986, I had gone to Ghansham Dass to make the monthly payment of the committees, then he said that earlier many members had not paid the payment of the committees, due to which I could not disburse the amount to the members and, therefore, you also should not give the committees. As and when the earlier amounts are settled, then I would accept the further payment of the committees. After that he did not disburse any amount to any member. When I and other members asked Ghansham Dass to give the accounts then he neither gave us the accounts nor gave any amount of the committees and; had been saying to give the amount as and when he could arrange for it. Thus, he has utilised the amount of committees for his personal use. I had deposited Rs. 4450/- in both the committees and thus he has cheated us by playing a fraud. I was going to report the matter today, when you met me near the ITI crossing and I have given my statement. Action may kindly be taken.

On the basis of allegations contained in the FIR, a case u/s 406/420 of the Indian Penal Code was registered against the petitioner in Police Station City, Yamuna Nagar. The police presented three challans against the petitioner relating to years 1984, 1985 and 1986. All the three cases have been clubbed and thus one trial has been held against the petitioner. The trial Court has framed charges Under Sections 406/420 of the Indian Penal Code against the petitioner. According to the petitioner, he has been running the committees since long and he had been collecting the amount from the members and had been disbursing the amount and also the profit in equal shares to the members. Thus, there was neither any intention of cheating the members nor any case of misappropriation. He has alleged that even if the allegations mentioned in the FIR are taken to be correct, no offence Under Sections 406/420 of the Indian Penal Code is made out against him and he, therefore, prays that the charge-sheet (Annexure P-1) framed against him in all the cases may be quashed being against law and facts.

After notice was issued to the respondent in all the three cases, reply was filed only in the first case, viz. Cri. M. No. 162-M of 1989. The learned Assistant Advocate General, Haryana, wanted this reply to be adopted in two other cases also as facts are common to all the cases. In the reply, it has been stated that the petitioner has dishonestly induced the complainant and others to become members of the committees and thereafter he misappropriated the amounts handed over to him by the complainant and others, in as much as he neither returned the amounts to the members of the committees nor accounted for the same. Hence, according to the respondent, the petitioner has committed the offences of cheating and misappropriation.

The learned counsel for the petitioner submitted that it was the case of the complainant in FIR that when he had gone to make monthly payment of the committees to the petitioner, he had told that earlier many members had not made payment of the committees, due to which he could not disburse the amounts to the members and, therefore, he also need not give the amount of the committees. As and when the earlier amounts were settled, then he would accept further payment of the committees and thereafter he would disburse any amount to the members. According to the learned counsel for the petitioner, the latter would not have declined to accept the monthly payments of the committees, if he had any dishonest intention to misappropriate any amount. In this background, it was contended by the learned counsel that no criminal offence has been committed by the petitioner and if at all the complainant had any right against him, the former could seek a civil remedy for the recovery of the amount. In support of his contention, the learned counsel relied on Ranjit Singh v. State of Punjab 1991 (1) RCR 262. In this single Bench judgment of the Punjab and Haryana High Court, the facts were that the accused was receiving deposits on the assurance that he would make double payment, but he did not make payment of the amount, the Court held that it was a case of civil liability. Accordingly it has held that a case u/s 420 of the Indian Penal Code was not made out. The next case, on which the learned counsel placed reliance was Ashok Kalia v. State of Punjab 1990(1) RCR 45. This is another single Bench judgment of the Punjab and Haryana High Court, in which the facts were that the accused was collecting money under double money saving scheme, but was not returning the amount on due dates, the Court held that it was a case of civil liability. The learned counsel lastly relied on yet another single Bench judgment of the Punjab and Haryana High Court in Dharamvir v. State of Punjab 1987 Cri LT 226. In this case the facts were that there was an allegation that the petitioners in the garb of running double money scheme collected a large amount of money from public which the intention of misappropriating the same, the Court held that even if the petitioners refused to refund the money to the depositors, it would at the most amount to breach of a contract, which would be a civil liability.

After hearing the learned counsel for the petitioner and the learned Assistant Advocate General I find that no presumption can be raised against the petitioner, on the facts and circumstances of the case, that he had any dishonest intention to misappropriate the amounts of the committees. This is evident from the fact that the complainant had himself conceded in the FIR, reproduced above, that when he had gone to make monthly payment of the committees to the petitioner, the latter had told him that earlier many members had not made payment of the committees, due to which he could not disburse the amount to the members and, therefore, he (complainant) also need not give the committees. If the petitioner had any dishonest intention to grab the money, as has been alleged by the complainant, the former would have not dissuaded the latter from making further deposits with him. The grievance of the complainant is based on the allegation that when he and other members asked the petitioner to give accounts, he neither gave them accounts nor gave them any amount of the committees and that he had been saying that he would give the amount as and when he could arrange for the same. This part of the averment in the FIR was sought to be used against the petitioner to allege that her has misappropriated the amount of the committees. I am unable to accept the contention of the learned Assistant Advocate General that the averments prove any mens rea against the petitioner. In case, the members, including the complainant, had deposited any amount with the petitioner, they would reasonably be expected to have the knowledge of the actual deposits made by them with him (petitioner) and in that view of the matter, the complainant and the other members of this group could come forward to allege that the petitioner had misappropriated any specific amount, which he refused to refund them, but such is not the case of the complainant. This clearly shows that the complainant himself does not know whether the petitioner has misappropriated any amount. Be that as it may, it does not prevent the complainant and the other aggrieved members of the committees to proceed against the petitioner for the recovery of the amount, which they had allegedly deposited with him by filing a civil suit. Viewed in this context, I am inclined to accept the contention of the learned counsel for the petitioner that the allegations contained in the FIR do not establish the commission of any offence by the petitioner. Hence, the observations made by the Punjab & Haryana High Court in Ranjit Singh''s case (supra), Ashok Kalia''s case (supra) and Dharmvir''s case (supra) would be directly attracted to the facts of the present case.

For the reasons recorded above, it is held that a case u/s 406 read with Section 420 of the Indian Penal Code is not made out against the petitioner and accordingly these petitions are allowed and the charge-sheets (Annexure P-1) in all the three cases are hereby quashed. Before parting, it may be observed that no observations made above will prevent the complainant from, if so advised, filing a civil suit against the petitioner to recover the amount in dispute from him.