Back
2020 Supreme(Gau) 336
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Manish Choudhury, J.
Ashok Sharma S/o Late Kashintah Sharma - Petitioner
Versus
The State of Assam and Another - Respondents
Crl. Pet. No. 634 of 2019
Decided On : 22-06-2020
Advocate Appeared:
For the Petitioner: Mr. M. Biswas
The main legal point established is that the intention of the accused at the time of inducement is crucial for establishing cheating, and mere breach of contract does not necessarily lead to criminal prosecution for cheating.
Headnote:
Section 482 - Quashing of Criminal Proceeding - Code of Criminal Procedure, 1973 - Sections 406/420, Indian Penal Code
Fact of the Case:
The petitioner sought quashing of criminal proceeding arising from an FIR for offences under Sections 406/420, IPC, alleging that the accusations in the FIR did not disclose the offences of cheating or criminal breach of trust.
Finding of the Court:
The Court found that the accusations in the FIR did not establish the essential elements of cheating or criminal breach of trust, and the initiation and continuance of the criminal proceeding amounted to an abuse of the process of the Court.
Issues: The issues revolved around whether the accusations in the FIR disclosed a criminal offence, and whether the initiation and continuance of the criminal proceeding constituted an abuse of the process of the Court.
Ratio Decidendi: The Court emphasized that the intention of the accused at the time of inducement is crucial for establishing cheating, and mere breach of contract does not necessarily lead to criminal prosecution for cheating. The Court also highlighted the parameters for exercising inherent jurisdiction under Section 482 of the Code of Criminal Procedure.
Final Decision: The Court quashed the FIR and discharged the petitioner of the alleged offences, concluding that the criminal prosecution was initiated to coerce the petitioner to make payment of a borrowed amount, thereby giving a criminal color to a civil wrong.
ORDER :
1. This criminal petition under Section 482, Code of Criminal Procedure, 1973 (‘the Code’ and/or the Cr.P.C. for short) is filed seeking quashing of the criminal proceeding arising out of the First Information Report (FIR) lodged on 28.01.2010, which has been registered as Dergaon Police Station Case No. 47/2019 for offences under Sections 406/420, Indian Penal Code (IPC).
2. Heard Mr. M. Biswas, learned counsel for the petitioner and Ms. S. Jahan, learned Additional Public Prosecutor for respondent no. 1, State of Assam. None has appeared for the respondent no. 2 today on call. When the case was listed on 22.05.2020, none had appeared for the respondent no. 2 on that occasion also. It is revealed from the records that notice had been duly served on respondent no. 2 and names of learned counsel representing respondent no. 2 are also reflected in the cause-list. In such fact situation, this criminal petition is taken up for consideration.
3. Mr. Biswas, learned counsel for the petitioner, by referring to the contents of the FIR, has submitted that the statements and accusations made in the FIR do not disclose any of the ingredients for either the offence of cheating or the offence of criminal breach of trust. He has submitted that the accusations, in essence, are only to the effect that the petitioner had failed to return back the amount he had borrowed from the respondent no. 2.
4. Ms. Jahan, learned Additional Public Prosecutor has submitted that a reading of the FIR does not reveal any kind of deception.
5. I have heard the learned counsel for the parties and also perused the contents of the FIR. Before any dilation on the submissions made on behalf of the learned counsel for the parties, it is apt to refer to the statements and accusations made in the FIR.
6. The FIR at issue was submitted by the respondent no. 2 before the Superintendent of Police, Golaghat on 22.01.2019 and the same stood forwarded to the Officer In-Charge, Dergaon Police Station by the Superintendent of Police, Golaghat by a communication dated 23.01.2019 with the direction to take necessary legal action. On receipt of the same, the Officer In-Charge, Dergaon Police Station registered a case as Dergaon Police Station Case No. 47/2019 for offences under Sections 406/420, IPC.
7. In the FIR, the respondent no. 2 had mentioned that the petitioner had asked her for an amount of Rs. 1,80,000/- about 2 years before to overcome his financial hardship with the assurance to return the same at a later date. On such request, the respondent no. 2 stated to have given him the amount of Rs. 1,80,000/- in installments through transfers from her bank account no. 10758041305 maintained at State Bank of India to the account no. 33136092096 maintained by the petitioner also at State Bank of India. It was alleged by the respondent no. 2 that when she asked the petitioner to return the money sometimes over telephone and sometimes through messenger, the petitioner did not pay the same and tried to delay the payment on one pretext or another. It was further mentioned that the respondent no. 2 had served legal notice on the petitioner. The legal notice dated 30.08.2018 sent by the respondent no. 2 through her learned advocate is annexed with this petition. It was contended that though the petitioner had received the legal notice but he did not make the payment.
8. On the other hand, Section 405, IPC defines criminal breach of trust and punishment for committing criminal breach of trust is prescribed in Section 406, IPC. Section 405, IPC and Section 406, IPC 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 prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching
