Avinash Vyas & Anr vs State Of Bihar & Anr on 25 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.32652 of 2014
Arising Out of PS.Case No. -9 Year- 2011 Thana -BEGUSARAI COMPLAINT CSAE District-
BEGUSARAI

1. Avinash Vyas Son of Sri Ram Mohan Vyas AT present posted as
Regional Collection Head, West Tata Motors Finance Limited At the
relevant period posted as National Collections Manager TATa Motors
Finance Limited Cyber Tech House, Thane (Maharashtra)
2. Raghav Chandra Son of Hriday Narayan Jha At present posted as State
Collection Head Jharkhand, at the relevant time posted as State Head
Collections, CV Finance, Tata Motors Finance Limited, Office No. 601-
602 6th flor, Kashi Palace, P.S. Kotwali, Town District Patna

…. …. Petitioner/s
Versus
1. The State of Bihar
2. Jyoti Kumar Singh D/o Ajay Singh At Mosadpur, P.O. Tilrath,
Begusarai -851101 Bihar

…. …. Opposite Party/s

Appearance :
For the Petitioner/s : Mr. Amaresh Kumar Sinha, Advocate
Mr. Dayanand Singh, Advocate
For the State : Mr. Jitendra Kumar Singh-I(App)

CORAM: HONOURABLE MR. JUSTICE S. KUMAR
ORAL ORDER

4 25-08-2017 The petition under Section 482 of the Code of Criminal

Procedure is for quashing the order taking cognizance dated

12.11.2013 passed by the Judicial Magistrate, Ist Class, Begusarai,

in Complaint Case no. 9 C of 2011 against the petitioners under

Sections 406 and 417 of the Indian Penal Code.

The complainant purchased a vehicle LPT1613 on loan

from Tata Motors Finance Limited. An amount of Rs. 3 lacs was

financed which was to be repaid in 29 instalments. It has been

contended that even after paying the installments, they were
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illegally demanding Rs. 45,000/- for no dues certificate. Petitioner

no. 1 Avinash Vyas is working as Regional Collection Head, West

at Thane and he has no role whatsoever in connection with the

said contract of the complainant or issuance of no dues certificate.

Petitioner no. 2 Raghav Chandra is working as State Collection

Head, Jharkhand, for Tata Motors Finance Ltd. at Jamshedpur and

has no role whatsoever in connection with the alleged offence for

issuance of no dues certificate.

The complainant was examined on solemn affirmation

before the court below and in support of the complaint case two

witnesses were also examined and also their documents relating to

transactions and agreements were placed before the court below.

On the basis of the complaint case, statement of complainant on

solemn affirmation and examination of two witnesses, the court

below took cognizance of the offence under Section 406 and 417

of the Indian Penal Code and issued summons for their

appearance.

It has been submitted by the learned counsel for the

petitioners that the order taking cognizance under Sections 406

and 417 of the Indian Penal Code is bad in law and also in fact. It

has further been submitted that from perusal of the complaint

petition it is apparent that no allegation has been levelled against
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the petitioners for cheating and criminal breach of trust. It has

also been submitted that necessary ingredient for fastening the

offence under Sections 406 and 417 against the petitioners is

completely lacking and the entire dispute is of civil nature and at

best breach of agreement does not make any criminal offence. It

has further been stated that dispute between the parties has been

referred to arbitration. The Apex Court in Pepsi Foods Ltd. Vs.

Special Judicial Magistrate (1998)5 SCC 749 held as,

“28. Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant has to
bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The
order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the case
and the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to
succeed in bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. The Magistrate has to carefully scrutinize the
evidence brought on record and may even himself put
questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused.”

The Apex Court in Dalip Kaur and Others Vs. Jagnar

Singh and Another (2009) 14 Supreme Court Cases 696 held as,

“8. Sections 405 and 415 of the Penal Code defining
“criminal breach of trust” and “cheating” respectively
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
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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 willfully suffers any other person so to do, commits
„criminal breach of trust‟.

* * *

415. Cheating.- Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived
to deliber any property to any person, or to consent that
any person shall retainany 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‟.”
An offence of cheating would be constituted when the
accused has fraudulent or dishonest intention at the time
of making promise or representation. A pure and simple
breach of contract does not constitute an offence or
cheating.

9. The ingredients of Section 420 of the Penal Code are :

“(i) Deception of any persons;

(ii) Fraudulently or dishonestly inducing any
person to deliver any property; or

(iii) To consent that any person shall retain any
property and finally intentionally inducing that person to
do or omit to do anything which he would not do or omit.”

10. The High Court, therefore, should have posed a
question as to whether any act or inducement on the part
of the appellant has been raised by the second respondent
and whether the appellant had an intention to cheat him
from the very inception. If the dispute between the parties
was essentially a civil dispute resulting from a breach of
contract on the part of the appellants by non-refunding
the amount of advance the same would not constitute an
offence of cheating. Similar is the legal position in respect
of an offence of criminal breach of trust having regard to
its definition contained in Section 405 of the Penal Code.
(See Ajay Mitra v. State of M.P. (2003 3 SCC 11 : 2003
SCC (Cri) 703)

The Apex Court in Binod Kumar And Others Vs. State

of Bihar and Another (2014) 10 Supreme Court Cases 663 held

as,

“15. Section 405 IPC deals with criminal breach of trust.
A careful reading of Section 405 IPC shows that a
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criminal breach of trust involves the following
ingredients:

(a) a person should have been entrusted with
property, or entrusted with dominion over property;

(b) that person should dishonestly misappropriate
or convert to his own use that property, or dishonestly use
or dispose of that property or willfully suffer any other
person to do so;

(c) that such misappropriation, conversion, use or
disposal should be 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 the discharge of such trust.

16. Section 406 IPC prescribes punishment for criminal
breach of trust as defined in Section 405 IPC. For the
offence punishable under Section 406 IPC, prosecution
must prove:

(i) that the accused was entrusted with property
or with dominion over it; and

(ii) that he (a) misappropriated it, or (b) converted
it to his own use, or (c) used it, or (d) disposed of it.
The gist of the offence is misappropriation done in a
dishonest manner. There are two distinct parts of the said
offence. The first involves the fact of entrustment, wherein
an obligation arises in relation to the property over which
dominion or control is acquired. The second part deals
with misappropriation which should be contrary to the
terms of the obligation which is created.

17. Section 420 IPC deals with cheating. The essential
ingredients of Section 420 IPC are:

cheating;

dishonest inducement to deliver property or to make,
alter or destroy any valuable security or anything which
is sealed or signed or is capable of being converted into
a valuable security, and
mens rea of the accused at the time of making the
inducement.

18. In the present case, looking at the allegations in the
complaint on the face of it, we find that no allegations
are made attracting the ingredients of Section 405 IPC.
Likewise, there are no allegations as to cheating or the
dishonest intention of the appellants in retaining the
money in order to have wrongful gain to themselves or
causing wrongful loss to the complainant. Excepting the
bald allegations that the appellants did not make
payment to the second respondent and that the
appellants utilized the amounts either by themselves or
for some other work, there is iota of allegation as to the
dishonest intention in misappropriating the property. To
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make out a case of criminal breach of trust, it is not
sufficient to show that money has been retained by the
appellants. It must also be shown that the appellants
dishonestly disposed of the same in some way or
dishonestly retained the same. The mere fact that the
appellants did not pay the money to the complainant
does not amount to criminal breach of trust”.

I have gone through the materials available on record and

considering the arguments advanced by both the parties and mere

perusal of the complaint petition show that there is no allegation

against the petitioners constituting any criminal offence and

dispute concerns Settlement of Accounts only, still they have been

arrayed as accused in the complaint petition. I find no offence

under Sections 406 and 417 of the Indian Penal Code made out

against the petitioners and continuance of the present proceeding

against the petitioners will amount to abuse of the process of the

court and as such, the order dated 12.11.2013 taking cognizance

against the petitioners in Complaint Case No. 09 C of 2011 under

Sections 406 and 417 of the Indian Penal Code as well as the

whole criminal proceeding arising out of the said Complaint Case

is quashed as far as same relates to petitioners.

Petition stands allowed.

(S. Kumar, J)
sudip/-

U T

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