| SooperKanoon Citation | sooperkanoon.com/433949 |
| Subject | Criminal |
| Court | Andhra Pradesh High Court |
| Decided On | Feb-24-2003 |
| Case Number | Criminal Petition No. 6172 of 2002 |
| Judge | K.C. Bhanu, J. |
| Reported in | 2003(1)ALD(Cri)397; 2003(2)ALT(Cri)534; 2003CriLJ2631 |
| Acts | Code of Criminal Procedure (CrPC) - Sections 156(3) and 482; Indian Penal Code (IPC) - Sections 201, 408, 409, 418 and 420 |
| Appellant | Vijay Prakash Vijay Varge and anr. |
| Respondent | State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of A.P. and anr. |
| Appellant Advocate | Manik Rao, Adv. |
| Respondent Advocate | Public Prosecutor |
| Disposition | Petition dismissed |
K.C. Bhanu, J.
1. This petition under Section 482 of the Code of Criminal Procedure seeks to quash the proceedings in crime No. 453/2000 of White Collar Offences-Special Team, Central Crime Station, Detective Department, Hyderabad, dated 6.9.2002.
2. The brief facts that are necessary for the disposal of the petition are that 2nd respondent represented by its Proprietor Narayan Das Jhawar, filed a complaint before the learned XXI Metropolitan Magistrate, Hyderabad, against the petitioners and one another, and the learned Magistrate forwarded the complaint to C.C.S., under Section 156(3) Cr.P.C. for investigation. The case was registered as crime No. 453/2002 under Sections 408, 418 and 420 of the Indian Penal Code. To quash the said crime, A2 and A3 filed the present petition.
3. Learned counsel for the petitioners relied upon Dr. Sharda Prasad Sinha V. State of Bihar, : 1977CriLJ1146 , Chandrapal Singh V. Maharaj Singh, : 1982CriLJ1731 , Delhi Municipality V. Ram Kishan, : 1983CriLJ159 , Ashok Chaturvedi V. Shitul H. Chanchani, 1998 (3) CRIMES 177 (SC), State of U.P. V. R.K. Srivastava, : 1989CriLJ2301 , and, inter alia, contended that in view of the law laid down in the following decisions cited by him, the petition should be allowed.
4. In Sharda Prasad (1 supra), it is held in paragraph 2 as under:
'It is now settled that where the allegations set out in the complaint or the charge sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under S.482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence.'
5. In Chandrapal Singh (2 supra), it is held in paragraph 13 as follows:
'Therefore, on the averments of the complainant himself in the complaint no court could have taken cognizance of an offence under Sec. 201 I.P.C. The complaint, therefore in respect of an offence under Section 201 I.P.C. is liable to be quashed on the ground that there is no even the slightest allegation to constitute an offence excepting mention number of the section of the Penal Code.'
6. In Delhi Municipality (3 supra), it is held as below:
'Proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482.'
7. In the case of Ashok Chaturvedi v. Shitul H. Chanchani (5 supra), it is observed as follows:
'Power under Section 482 Cr.P.C. has to be exercised sparingly and in the interest of justice. But allowing the criminal proceedings to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and, therefore, there cannot be any dispute that in such a case power under Section 482 of the Code can be exercised.'
8. In the case of State of U.P. (6 supra), it is held as under:
'It is now a well settled principle of law that if the allegations made in the FIR are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed.'
9. The well settled principle of law as can be gathered and gleaned from the above catena of decisions is that if the allegations in the FIR or the charge sheet when taken as true at their face value constitute prima facie the offences alleged, the proceedings cannot be quashed, and if they do not constitute any offence, the proceedings need to be certainly quashed, and the power to quash of FIR in a criminal proceeding should be exercised sparingly and only in exceptional cases and if the factual foundation of the offence as laid down in the complaint does not constitute an offence, the Court should not hesitate to quash the criminal proceeding during the course of investigation.
10. It has now to be seen whether in the present case the allegations make out a prima facie case for the offences alleged against the petitioners.
11. It is the case of the complainant-2nd respondent that it supplied castor oil seeds to the accused under eight different bills totaling to an amount of Rs.6,90,982/- in the months of August and October 2000, that despite receiving the goods under valid acknowledgements, the accused cleared only one bill, dated 7.8.2000, but did not clear the other bills of October 2000, that the accused declared receipt of the goods by filing declaration before the sale tax authorities, that A2 and A3 being the partners of A1-partnership firm, were responsible for the day-to-day affairs of the partnership firm, and that after receiving the goods with the knowledge that they would be responsible for payment, the accused cheated the complainant causing wrongful loss to it and therefore the accused committed the offences punishable under Sections 409, 418 and 420 of the Indian Penal Code.
12. Section 409 I.P.C. read as follows:
'Criminal breach of trust by public servant, or by banker, merchant or agent -- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.'
13. Thus, criminal breach of trust is committed only when the banker, merchant, etc., is entrusted in the way of his business with property or with documents which give him dominion over property, and not otherwise. The property must be entrusted to him in such manner that he becomes subject, by contract, express or implied, or by force of law, to a certain duty in regard to it.
14. Section 418 I.P.C. is extracted below:
'Cheating with knowledge that wrongful loss may ensure to person whose interest offender is bound to protect - Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person who interest in the transaction to which the cheating relates, he was found either by law or by legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.'
15. A perusal of the above Section shows that the aggravated form of cheating which is punished by this Section is committed when the person who cheats stands in some relation of trust or confidence to the person cheated either as a clerk, servant or agent generally, or as a person employed on a particular occasion only, as a broker employed to buy or sell certain goods, as auctioneer employed to sell property etc.
16. To hold a person guilty of cheating under Section 420 I.P.C., it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled while wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled. These are two facets of the definitions of dishonesty.
17. Bearing the above principles in mind, it has to be seen whether the allegations in the complaint make out a prima facie case for the offences alleged against the petitioners.
18. As seen from the allegations, the complainant, engaged in the business of commission of agency, supplied castor oil seeds to A1-firm, of which the petitioners are partners, on different dates in the months of August and October 2000. The total amount payable by the accused was Rs.6,90,982/-. Except for the goods worth Rs.80,535/- supplied in the month of August 2000, the accused did not pay for the value of the goods that were supplied in October 2000. As the goods supplied were subject to sales tax, the complainant paid sales tax of Rs.27,750/- on the total value of the goods supplied to the accused. The complaint further reads that A1-firm declared the receipt of the goods by filing declaration before the sales tax authorities. In spite of repeated requests, the accused did not clear the bills with a view to avoid liability. So, the acts committed by the accused are prima facie dishonest intention so as to cheat the complainant. At the request of the accused the goods were supplied on the undertaking given by them to clear the bills. If the intention of the accused had been genuine, they would not have certainly withheld the payment. Having declared the receipt of goods by filing necessary declaration before the sale tax authorities, the accused ought to have cleared the bills as per the understanding.
19. After receipt of the goods, the accused are bound to pay the value of the goods to the complainant, but they did not do so. On the other hand, they caused wrongful loss to the complainant. If the allegations in the complaint are taken at their face value, they do make out a case for the offence of cheating, criminal misappropriation and criminal breach of trust. It is not necessary to delve deep into the material record. So also there is no need to weigh or sift the evidence at this stage.
20. Learned counsel for the petitioners contended that there was no dishonest intention on the part of the accused at the time of making the promise and, therefore, the question of cheating does not arise.
21. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent intention at the time of making the promise to say that he committed an act of cheating. A mere failure to keep up promise cannot be presumed as an act leading to cheating. There is no allegation in the complaint that the accused had dishonest intention, i.e., deception, at the time of making the promise. Therefore, the allegations prima facie do not attract the offence under Section 420 I.P.C.
22. Be that as it may, the allegations do make out a case for offences under Sections 409 and 408 I.P.C. The case is under investigation. It is the statutory duty of the police to conduct investigation. Neither can their duty be curtailed nor can the investigation be stifled at this stage, because it is not shown that the allegations in the complaint are absurd or do not constitute any of the offences for which the case was registered.
23. In view of the above discussion, I am of the considered view that the allegations in the complaint do make out a prima facie case under Sections 409 and 418 I.P.C. Though they do not make out a prima facie case under Section 420 I.P.C., it cannot be the sole ground to quash the proceedings. There are absolutely no grounds to quash the proceedings. Hence, the petition is dismissed.