IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.953 OF 2015
(@ Special Leave Petition (Crl.) No. 330 of 2015)
Mr. Robert John D’Souza and others… Appellants
Versus
Mr. Stephen V. Gomes and another… Respondents
J U D G M E N T
Prafulla C. Pant, J.
This seductiveness is destined opposite sequence antiquated 9.10.2014, upheld by a High Court of Karnataka during Bangalore in Criminal Petition No. 658 of 2014 whereby pronounced probity has discharged a petition, and declined to stifle a Criminal Complaint box No. 357 of 2012, filed by respondent No. 1, opposite a appellants.
Brief contribution of a box are that a Society named – Mukka Welfare Society was constituted on 28.3.1970 for free work and amicable service, purebred underneath Karnataka Societies Registration Act, 1970. Appellant No. 1, appellant No. 2 and appellant No. 3 were President, Secretary and Treasurer respectively, while appellant Nos. 4 to 7 were Directors of a Society. Other appellants are their relatives. A square of land temperament S. No. 239/10 measuring 0.50 acres in Village Suratkal, Taluk Mangalore, was purchased by a Society vide purebred sale help antiquated 28.1.1978 from one Smt. Kaveri Hengsu. It is purported by a complainant (respondent No. 1) that appellant Nos. 1 to 7, being members of a Executive and Directors of Mukka Welfare Society, misusing a position, hold Board Meetings on 22.9.1995 and 13.10.1995 facilitating a sale of a above mentioned land in foster of their kin (appellant Nos. 7 to 12). The sale deeds were executed on 16.2.1996. It is serve staid that a purchasers (appellant Nos. 7 to 12), executed sale deeds in a same year in foster of a Directors of a Society. It is purported by a complainant/respondent No.1 that a appellants have fraudulently usurped a skill by a sale deeds mentioned above, and thereby committed cheating.
The rapist censure filed by respondent No. 1 was purebred by a 1 st Additional Senior Civil Judge and Chief Judicial Magistrate, Mangalore, DK, who, after recording a matter of a complainant underneath Section 200 of a Code of Criminal Procedure, 1973 (for brief “CrPC”), summoned a appellants vide sequence antiquated 13.4.2012 in honour of offences punishable underneath Sections 406, 409, 420 review with Section 34 of Indian Penal Code (IPC). The appellants filed Criminal Revision Petition No. 58 of 2012 before a Principal Sessions District Judge of D.K. District during Mangalore, that was discharged vide sequence antiquated 6.2.2013. Thereafter, a appellants filed a petition underneath Section 482 CrPC before a High Court and a same was also dismissed. Hence this seductiveness by special leave.
We have listened schooled warn for a parties and perused a papers on record.
The impugned orders upheld by a High Court and a other authorities next are challenged before us especially on a following grounds: – (i) Respondent No. 1/complainant is not a member of a “Mukka Welfare Society” nor is he in any demeanour connected with a affairs of a Society, as such he has no area to record a rapist complaint. (ii) The sale deeds in doubt were executed in a year 1996, and a rapist censure is filed malafide by respondent No. 1 after a duration of fourteen years, in a year 2010, as such a courts next have erred in law in not holding note of pronounced fact. (iii) The courts next have erred in law in not appreciating that a censure in doubt was filed to get personal fight by respondent No. 1 opposite a Directors of a Society. (iv) The courts next serve erred in not deliberation a fact that a complainant/respondent No. 1 had progressing filed a complaint, with same set of facts, before a Deputy Commissioner, Dakshin Kannada, Mangalore, and a same was sent to Police Station Suratkal for investigation, and a Circle Inspector, after investigation, did not find any corruption to have been committed by a appellants, as a brawl was quite of polite in nature. (v) Ingredients of a offences punishable underneath Sections 406, 409 and 420 IPC are not finished out. (vi) None of a exchange of sale in doubt is opposite any bye-law or proviso of Memorandum of Association of a Society.
In a opposite confirmation filed on seductiveness of respondent No.1, it has been staid that a complainant came to know of a exchange of sale, usually in a year 2009, whereafter he complained before a Deputy Commissioner, D.K., as such a emanate lifted as to check in filing a censure is unfounded. It is serve staid that a Mukka Welfare Society receives donations from several institutions and ubiquitous public. The claim of personal vendetta, pleaded in a seductiveness by a appellants, has been denied in a opposite affidavit. Lastly, fortifying a orders upheld by a courts below, it is staid that a courts next have committed no blunder of law.
Arguments were modernized by schooled warn for a parties on a above lines pleaded before us. Having deliberate a submissions of a schooled warn for a parties what is apparent in a benefaction box is that a complainant is not a member of Mukka Welfare Society. It is also not doubtful that a sale deeds in doubt were executed approach behind in a year 1996 and a complainant, who is not even member of a Society, raises a emanate that a sale deeds were executed for a advantage of a Directors of a Society, after a prolonged opening of some-more than twelve years. Sale deeds in doubt are registered, and not announced zero and blank by any probity of law. It is also applicable to discuss here that admittedly progressing a censure was finished by a complainant to a Deputy Commissioner in a year 2009, that was got investigated by a military and a outcome of a review was that no corruption was found committed by a appellants on a belligerent that a brawl is of polite in nature.
In perspective of a above facts, apparent on a record, we are of a perspective that a High Court and a courts next have committed grave blunder of law in ignoring a same. Needless to contend that to consecrate an corruption punishable underneath Section 406 IPC, a essential partial is a “entrustment” of a property. The censure filed by a complainant nowhere discloses that a land in doubt purchased in a year 1978 was entrusted to a Society for a advantage of others. It is usually after delegation is shown, it can be pronounced that there was rapist crack of trust.
In Ram Narayan Popli v. Central Bureau of Investigation 1, this Court, per majority, has explained “entrustment” in divide 363 as under: –“ The tenure “entrustment” is not indispensably a tenure of law. It might have opposite implications in opposite contexts. In a many ubiquitous interpretation all it imports is a handing over possession for some purpose that might not indicate a consultation of any exclusive right during all.”
In State of Gujarat v. Jaswantlal Nathalal 2, this Court in divide 8 has celebrated that a small transaction of sale can't volume to an entrustment.
At this theatre we also cruise it correct to observe that in a benefaction case, even if a allegations finished in a censure are taken to be true, a mixture of a corruption punishable underneath Section 409 IPC for that appellants are summoned, are also not finished out. To consecrate an corruption punishable underneath Section 409 IPC, detached from entrustment, it is also essential requirement that it should be shown that a indicted has acted in a ability of a open servant, banker, merchant, factor, broker, profession or agent. It is nowhere shown in a censure that a appellants have acted in any of a above capacities.
As distant as corruption of intrigue is concerned, a same is tangible in Section 415 IPC, for that a punishment is supposing underneath Section 420 IPC. Section 415 reads as under:-“ 415. Cheating. – Whoever, by deceiving any person, fraudulently or dishonestly induces a chairman so cheated to broach any skill to any person, or to agree that any chairman shall keep any property, or intentionally induces a chairman so cheated to do or replace to do anything that he would not do or replace if he were not so deceived, and that act or repudiation causes or is expected to means repairs or mistreat to that chairman in body, mind, repute or property, is pronounced to “cheat”. Explanation. – A prejudiced dissimulation of contribution is a dishonesty within a definition of this section. Illustrations……………”
From a above denunciation of a Section, one of a essential mixture for a corruption of intrigue is deception, yet in a benefaction case, from a essence of a censure it nowhere reflects that a complainant was cheated or he or anyone else was prompted to broach a skill by deception. What was done, was so reflected in a resolutions, and sale deeds.
In Mathavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao Angre and others 3, a three-Judge Bench of this Court has laid down a law as to quashment of record underneath Section 482 CrPC as follows:-“ 7. The authorised position is good staid that when a charge during a initial theatre is asked to be quashed, a exam to be practical by a probity is as to either a uncontroverted allegations as finished prima facie settle a offence. It is also for a probity to take into care any special facilities that seem in a sold box to cruise either it is judicious and in a seductiveness of probity to assent a charge to continue. This is so on a basement that a probity can't be utilized for any ambiguous purpose and where in a opinion of a probity chances of an ultimate self-assurance is dour and, therefore, no useful purpose is expected to be served by permitting a rapist charge to continue, a probity might while holding into care a special contribution of a box also stifle a move even yet it might be during a rough stage.”
In Suresh v. Mahadevappa Shivappa Danannava and another 4, rapist charge was quashed by a Court in honour corruption of intrigue seeing that a censure was filed after a relapse of 10 years.
In Inder Mohan Goswami and another v. State of Uttaranchal and others 5, this Court in paragraphs 25 and 46 has celebrated as under: –“ 25. Reference to a following cases would exhibit that a courts have consistently taken a perspective that they contingency use this unusual energy to forestall misapplication and secure a ends of justice. The English courts have also used fundamental energy to grasp a same objective. It is generally concluded that a Crown Court has fundamental energy to strengthen a routine from abuse. In Connelly v. DPP (1964 AC 1254) Lord Devlin staid that where sold rapist record consecrate an abuse of process, a probity is empowered to exclude to concede a censure to ensue to trial. Lord Salmon in DPP v. Humphrys (1977 AC 1) stressed a significance of a fundamental energy when he celebrated that it is usually if a charge amounts to an abuse of a routine of a probity and is rough and resentful that a decider has a energy to intervene. He serve mentioned that a court’s energy to forestall such abuse is of good fundamental significance and should be envy preserved. xxx xxx xxx 46. The probity contingency safeguard that rapist charge is not used as an instrument of nuisance or for seeking private fight or with an distant ground to pressurise a accused. On research of a aforementioned cases, we are of a opinion that it is conjunction probable nor fascinating to lay down an resistant sequence that would oversee a practice of fundamental jurisdiction. Inherent office of a High Courts underneath Section 482 CrPC yet far-reaching has to be exercised sparingly, delicately and with counsel and usually when it is fit by a tests privately laid down in a government itself and in a aforementioned cases. In perspective of a staid authorised position, a impugned visualisation can't be sustained.”
In perspective of a above contention and contribution and resources of a case, we are of a perspective that zero of a offences for that a appellants are summoned, is finished out from a censure and element on record. We serve find that it is zero yet abuse of routine of law on a partial of a complainant to implicate a appellants in a rapist box after a duration of twelve years of execution of purebred sale deeds in question, who is conjunction celebration to a sale deeds nor a member of a Society. Therefore, we concede a seductiveness and set aside a orders upheld by a High Court and that of a courts below. Accordingly, a sequence upheld by a Magistrate summoning a appellants in a rapist censure filed by respondent No. 1, in honour of offences punishable underneath Sections 406, 409 and 420 IPC, also stands quashed.
[Dipak Misra]
[Prafulla C. Pant]
New Delhi;
July 21, 2015.
1 (2003) 3 SCC 641
2 AIR 1968 SC 700
3 (1988) 1 SCC 692
4 (2005) 3 SCC 670
5 (2007) 12 SCC 1
