HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 27.4.2018
Delivered on 29.5.2018
Case :- APPLICATION U/S 482 No. – 26343 of 2009
Applicant :- Manish Goel
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Sudhir Kumar Singh,Lalit Kumar Misra
Counsel for Opposite Party :- Govt. Advocate,Man Bahadur Yadav,Rajnish Dubey
Hon’ble Abhai Kumar,J.
Heard Sri Anil Kumar Bajpai and Sri Tanmay Agarwal, learned counsel for the applicant, Sri Rajneesh Dubey, learned counsel for the opposite party no.2 and perused the record.
This petition under Section 482 Cr.P.C. has been filed with the prayer to allow this petition and quash the entire proceeding of Criminal Case No.186 of 2009 arising out of Complaint Case No.1735 of 2008 (Tarkeshwar Singh vs. Manish Goel), under Section 406 I.P.C., Police Station Kotwali, District Azamgarh pending in the Court of Additional Chief Judicial Magistrate, Court No.10, Azamgarh as well as to quash the impugned summoning order dated 15.9.2009 passed by learned Additional Chief Judicial Magistrate, Court No.10, Azamgarh.
Brief facts of the case are as follows:
A complaint case was filed by opposite party no.2 against the applicant under Section 406 I.P.C. The statement of opposite party no.2 was recorded under Section 200 Cr.P.C., whereas the statement of witnesses were recorded under Section 202 Cr.P.C. and the trial court after finding prima facie case against the applicant, summoned the applicant under Section 406 I.P.C. for facing the trial. The ornament of opposite party no.2 was stolen from the shop of the applicant for which an FIR was also got registered by the applicant on 12.3.2006 regarding the incident which took place in the intervening night of 11.3.2006 wherein it has been specifically provided that ornaments of Tarkeshwar Singh amounting to Rs.20,000/- is being also stolen. It is admitted to the applicant that money is being kept with the mother of applicant (who is since dead) and at no point of time the applicant has denied keeping the ornament of opposite party no.2 .
It is submitted by learned counsel for the applicant that dispute between the parties is squarely civil in nature. It is admitted fact that jewellery is being kept with the mother of applicant. It is also admitted fact that licence of money lending was in the name of mother of applicant, whereas the applicant used to sit in the shop on behalf of his mother. It is admitted that jewellery is being kept with the applicant and same is being stolen from the shop of the applicant and there is specify narration of the fact that jewellery of opposite party no.2 is also being stolen, then it cannot be said that offence under Section 406 I.P.C. is made out and there is no criminal breach of trust. A criminal proceeding is undertaken to pressurize the applicant to return the money from the prevalent rate at the time of making the FIR. It is also submission of learned counsel for the applicant that Rs.20,000/- were given to the opposite party no.2 when jewellery is being kept with the applicant and opposite party no.2 is liable to pay the interest upon the money given to the opposite party no.2. It is also contention of learned counsel for the applicant that applicant is still willing to pay the amount of Rs.20,000/-, which is value of ornament kept with the applicant. In case it is acceptable to the opposite party no.2, then the applicant is also ready to give-up the interest that would accrue on the lending amount.
Whereas the learned counsel appearing for the opposite party no.2 as well as learned A.G.A. opposed the contention of learned counsel for the applicant and submitted that usually 50% of the amount is being disbursed of the jewellery that is being kept with the money lender and it can very well be said that value of jewellery was minimum of Rs.40,000/- at the time of it is being kept with the applicant.
At this point of time, it is submitted by learned counsel for the applicant that applicant is ready to give Rs.40,000/- to the opposite party no.2 in lieu of jewellery that is being kept with the applicant and he is also ready not to claim the interest upon the lending money.
It is admitted fact that jewellery is being kept with the applicant under the licence, which was in the name of mother of applicant. At that time and Rs.20,000/- were lended to the opposite party no.2. It is also admitted fact that an FIR was got lodged by the applicant in which jewellery of opposite party no.2 is said to have been stolen. If it is the condition then it cannot be said that applicant is not willing to return the jewellery as it was beyond his capability. No recovery is said to have been made in reference to the FIR lodged by the applicant and accordingly the jewellery given by the opposite party no.2 is not in the custody of applicant and he is not in a position to return the same.
Hon’ble Apex Court in the case of State of Haryana vs. Bhajan Lal1, has laid down some principle, which are required to be considered before initiation of any criminal proceeding. The observation of Hon’ble Apex Court is as follows:
“102. 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 extraordinary 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 channelized 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 FIR 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 FIR 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.”
The Hon’ble Apex Court in the case of State of Haryana vs. Bhajan Lal (supra) has clearly stated that where a criminal proceeding is manifestly attended with mala fide 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, the same cannot be allowed.
As has already discussed in the present case, there is no intention on the part of the applicant to commit any criminal act and due to inevitable circumstances, he is not in a position to return the jewellery. In case the opposite party no.2 was aggrieved, he could have very well filed a suit for recovery of jewellery and in alternate payment of appropriate money in this regard. It cannot be decided in a criminal proceeding as to what was the actual price of jewellery kept with the applicant and what was the interest of lended money to be given by the opposite party no.2 and all these facts could have been decided by civil court.
The Hon’ble Apex Court since the very beginning has in very clear terms held that any civil liability cannot be allowed to be executed through criminal case by exerting pressure.
In V.Y. Jose and another Vs. State of Gujarat and another2, Hon’ble Apex Court in the similar circumstances held as follows:
“12. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.
15. There exists a distinction between pure contractual dispute of civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.
We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract.
Section 482 of the Code of Criminal Procedure, saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him.
It is one thing to say that a case has been made out for trial and as such the criminal proceedings should not be quashed but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all.”
In the present case the entrustment of jewellery is not being denied by the applicant, but for constituting an offence under Section 406 I.P.C., it is necessary to prove that there is dishonest, misappropriation etc. of that property. The word ‘dishonest’ and ‘misappropriation’ is key and from the facts narrated above, it cannot be said that there was dishonest intention of the applicant, rather he failed to meet the agreement as there was theft and he was not in a position to return the jewellery, it cannot be said that there was any intention on the part of the applicant to misappropriate the jewellery that is being kept by the opposite party no.2 and accordingly the offence under Section 406 I.P.C. is not made against the applicant.
The only allegation made in the FIR is that applicant did not return the jewellery, when the lended money as well as interest is being offered and this act of the applicant is an offence under Section 406 I.P.C. In complaint case, it has been stated that in the year 2008 the opposite party no.2 went to the applicant for returning of the jewellery, whereas the FIR by the applicant was lodged in the year 2006 and it cannot be said that this FIR was false and fabricated one just to deny the opposite party no.2 of his jewellery.
From the version of complainant and from the statements of witnesses, it cannot be said that applicant out of ill will did not return the jewellery of the opposite party no.2 and thereby he breached the trust. Complaint is also ambiguous. Specification of jewellary is not there. It is said that receipt was not given whereas as per the Act the applicant was required to issue receipt and also maintain record for that. No question arises for applicant to disown the responsibility.
In view of the above discussions, this Court is of the view that offence under Section 406 I.P.C. is not made out against the applicant and proceeding against the applicant before the trial court concerned unwarranted and has been initiated just to pressurize the applicant in reference to the jewellery kept by the opposite party no.2 with the applicant.
Moreover the initiation of criminal proceeding by the opposite party no.2 was unwarranted as he was having remedy of redemption of jewellery given as security under the Uttar Pradesh of Money-Lending (Amendment) Act, 1978 (hereinafter or before referred to as “the Act”). Section 15 (1) is relevant, which is reproduced as below:
15. Special provisions applicable to claims by money-lender. – (1) The provisions of this section shall apply to every suit, whether heard ex parte or otherwise –
(a) by a money-lender for the recovery of a loan advanced after the commencement of this Act;
(b) by a money-lender for the enforcement of any security taken or any agreement, whether by way of settlement of account or otherwise, made after the commencement of this Act in respect of any loan advanced either before or after such commencement;
(c) against a money-lender for the redemption of any security given to him after the commencement of this Act in respect of any loan advanced either before or after such commencement.
In view of provision of Section 15 (1) (c) of the Act, the opposite party no.2 was having recourse for redemption of security given to the money lenders and grievance of the opposite party no.2 would have been redressed by that. From perusal of Section 15 of the Act as referred above, it can very well be said that it is the intention of legislature to curb the criminal proceedings between the parties where some money is being lended under the Act. Accordingly, the proceeding drawn by the opposite party no.2 against the applicant by the impugned complaint was misuse of process of law and was unwarranted.
The proposal of applicant regarding the payment of Rs.40,000/- in lieu of jewellery that is being kept in the custody of the applicant is also liable to be accepted and in case the opposite party no.2 is of the opinion that Rs.40,000/- is not sufficient money for jewellery that is being kept by him, then he may redress his claim in view of Section 15 (1) (c) of the Act.
In result, the petition is allowed. The proceeding of Criminal Case No.186 of 2009 arising out of Complaint Case No.1735 of 2008 (Tarkeshwar Singh vs. Manish Goel), under Section 406 I.P.C., Police Station Kotwali, District Azamgarh pending in the Court of Additional Chief Judicial Magistrate, Court No.10, Azamgarh, is hereby quashed.
However, it is made clear that applicant as has been promised will pay Rs.40,000/- to the opposite party no.2 within a month from today and in case such receipt alongwith order of this Court is being produced before the trial court concerned, the proceeding against the applicant will stand quashed. In case the opposite party no.2 fails to accept the money, then same can be deposited with the court concerned and in case such money is being deposited in court concerned, the proceeding before the applicant will stand quashed. The opposite party no.2 will be entitled to claim that money.
In case such money is not withdrawn by the opposite party no.2 as referred above and in any proceeding drawn by the opposite party no.2, any order is being passed for payment of money in lieu of jewellery given as security and the money deposited by the applicant is not being adjusted there, then the opposite party no.2 will not be entitled to receive this money as deposited by the applicant under the direction in the present petition. If such is the situation, then applicant will be entitled to withdraw that money.
Order Date :- 29.5.2018