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2017 Supreme(Gau) 615
IN THE GAUHATI HIGH COURT (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
M.R.PATHAK, J.
Sri Debasish Nath, Son of Late Dijendra Chandra Nath – Petitioner
Versus
The State of Assam and Ors. - Respondents
CRL. PET. No. 890 of 2014
Decided On : 13-07-2017
For the Petitioner: Mr. A. Choudhury, Mr. E. Ahmed, Mr. N.I. Khan, Mr. J.H. Khan
The judgment establishes that for a criminal proceeding to continue, the essential ingredients of the alleged offences must be present, and the absence of such ingredients can lead to the abuse of the court's process.
Headnote:
Abuse of Process - Criminal Proceedings - Sections 420/406 IPC - [Section 406 IPC, Section 420 IPC]
Fact of the Case:
The respondent filed a criminal complaint against the petitioner alleging offences under Sections 420/406 IPC. The petitioner argued that the complaint was filed with malafide intention and lacked essential ingredients of the alleged offences.
Finding of the Court:
The court found that the complaint did not contain the essential ingredients of Section 406 or 420 IPC and concluded that allowing the proceeding to continue would be an abuse of the court's process.
Issues: Validity of the criminal complaint under Sections 420/406 IPC, Abuse of process of the court
Ratio Decidendi: The court held that for a person to be convicted under Section 420 IPC, it must be established that the accused dishonestly induced the person who was cheated to deliver any property. Similarly, to prove the offence under Section 406 IPC, the prosecution must establish the entrustment of property and its misappropriation by the accused.
Final Decision: The court set aside and quashed the criminal proceeding and the criminal complaint against the petitioner.
1. Heard Mr. A. Choudhury learned counsel for the petitioner and Mr. B.B. Gogoi, learned Public Prosecutor appearing for the State.
2. Though notice was served on respondent No. 2, the complainant and that the Registry received back the A/D Card after service of notice of the case, the said respondent did not enter appearance in the matter and as such this proceeding proceeded exparte against the said respondent.
3. The respondent No. 2 on 29.04.2014 as a complainant filed a criminal complainant before the learned Chief Judicial Magistrate, Hailakandi being CR Case No. 409C/2014 against the petitioner alleging commission of offences under Sections 420/406 IPC by him and the learned CJM, Hailakandi perusing the said compliant forwarded the same to the Officer-in-Charge of Lala Police Station to register a case, enquire in to the matter and submit report. On receipt of the said complaint on 14.05.2015 from learned CJM, Hailakandi, it was registered as Lala Police Station Case No.124/2014 under Sections 420/406 IPC corresponding to GR No. 606/2014.
4. Being aggrieved, pertaining to said registration of Lala P.S. Case No. 124/2014, the petitioner have preferred this criminal petition for quashing and setting aside the said criminal proceeding against him stating that the allegation made by the complainant/respondent No. 2 in said complaint being CR Case No. 409C/2014, which now treated as FIR with regard to said Lala P.S. Case, do not prima facie constitute any offence triable by criminal court as it does not disclose any cognizable offence justifying the investigation by police and same was filed and lodged by the complainant/respondent No. 2 with malafide intention for wracking vengeances against the petitioner and to harass him due to his private and personal grudge. In this regard the petitioner placed before the court that the allegation against him is that he verbally engaged the complainant/ respondent No. 2 in a construction work, promising him that on completion of the work he would give him half of the profit and on that understanding, the complainant engaged the workers, arranged JCB, stone chips, sand etc. and spent Rs 3,94,611/- and that in that regard cash memos and the account was already handed over to him. It is also placed that in said complainant, further allegation against the petitioner is that he promised him to provide winger vehicle under self help group scheme and on said hope, the said complainant/respondent No. 2 paid Rs 1,00,000/- as an advance and all total paid Rs.3,00,000/-per head on 11.02.2000 to him and according to the said complainant he had already spent Rs 3,94,611/- and that the petitioner is required to pay him an amount of Rs. 5,72,305/-, out of which the petitioner paid him Rs. 1,50,000/- by way of cheque and the remaining amount Rs. 4,22,305/- is yet to be paid.
5. The petitioner submits before the Court that the allegation made by complainant/ respondent No. 2 are vague, frivolous, fabricated and not based on facts and the said complaint has been filed with malafide intention, since no prudent person would believe that someone would spent such a huge amount on verbal assurance and that too, the petitioner never appointed the said respondent No. 2/ complainant as his agent or assistant for any purpose of work.
6. The petitioner has brought to the notice of the Court that he on 28.01.2014 filed a complaint under Section 107 Cr.P.C. before the Executive Magistrate at Hailakandi for keeping peace and security against the witnesses of the complainant/respondent No. 2 as they made illegal demand of money from him on behalf of the complainant/respondent No. 2, which was registered as Case No. 2914/2014 under Section 107 Cr.P.C. before the Executive Magistrate, Hailakandi wherein the learned Magistrate being satisfied drawn up the proceeding under the said Section of Cr.P.C. against the witnesses of the respondent No. 2 and issued show cause notice to them as to why they shall not be asked to
